HQ 952793

March 30, 1993

CLA-2 CO:R:C:M 952793 MMC

CATEGORY: Classification

TARIFF NO.: 7010.90.20

District Director of Customs

6269 Ace Industrial Dr.

P.O. Box 37260

Milwaukee, Wisconsin 53237

RE: Protest No. 3701-92-100018; milky white colored glass jars;

GRI 1; U.S. Additional Note 1(a); subheading 7010.90.50, HTSUS

Dear District Director:

The following is our decision regarding Protest and Further

Review No. 3701-92-100018, dated 3/13/92. The protest was filed

against your liquidation of entries of milky white colored glass

jars used to package \"Carmex\" lip balm under the Harmonized

Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise which is the subject of this protest, is a

round milky white colored glass container capable of holding 7ml

(1/4 oz.). The container is approximately 1 1/2 inch wide with

a 3/4 inch base and a 1/3 inch screw threaded mouth. It is

imported empty and then later filled with \"Carmex\" lip balm.

On advice from the appropriate national import specialist,

you classified the glass jars under subheading 7010.90.20, HTSUS,

which provides for Carboys, bottles, flasks, jars, pots, vials,

ampoules, and other containers, of glass, of a kind used for the

conveyance or packing of goods; preserving jars of glass;

stoppers, lids and other closures of glass:\...\[o\]ther: \[c\]losures

imported separately, containers (with or without their closures)

of a kind used for the conveyance or packing of perfume or other

toilet preparations: \[p\]roduced by automatic machine.

The importer argues that the container should be classified

under subheading 7010.90.50, HTSUS, which provides for Carboys,

bottles, flasks, jars, pots, vials, ampoules, and other

containers, of glass of a kind used for the conveyance or packing

of goods, preserving jars of glass, stoppers, lids and other

closures of glass:..\[o\]ther containers (with or without their

closures). The rates of duty under these provisions are 3.7

percent and free, respectively.

ISSUE:

Are the containers classifiable as containers of a kind used

for the conveyance or packing of perfume or other toilet

preparations under subheading 7010.90.20, HTSUS, or as other

glass containers under subheading 7010.90.50, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s). GRI

1, HTSUS, states in part that for legal purposes, classification

shall be determined according to the terms of the headings and

any relative section or chapter notes. Additional U.S. Rule of

Interpretation 1(a), HTSUS, provides that in the absence of

special language or context which otherwise requires- a tariff

classification controlled by use (other than actual use) is to be

determined in accordance with the use in the United States at, or

immediately prior to, the date of importation, of goods of that

class or kind to which the imported goods belong, and the

controlling use is the principal use.

The protestant argues that the jar is classifiable under

subheading 7010.90.50, HTSUS, because \"Carmex\", the lip balm

placed in the container after importation, is a medicinal

product, not a toilet preparation. However, the actual use of

the container by the importer is not controlling. The size,

shape, and mouth of the jar all indicate that it is a container

of the kind used to hold toilet preparations. The jar itself is

small enough to fit in a pocket, purse, or on a night stand and

its beveled inside bottom makes it easier to remove the contents

with a finger. At the time of importation, the jars are capable

of holding a variety of creams and cosmetics and we believe this

is the principle use of this kind of container. Because these

jars are of the class or kind principally used for the packaging

of toilet preparations we find the glass containers to be

classifiable in subheading 7010.90.20, HTSUS.

HOLDING:

The empty glass containers were properly classified under

subheading 7010.90.20, HTSUS. The protest should be denied.

A copy of this decision should be attached to the Customs

Form 19 and provided to the protestant as part of the notice of

action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings