HQ 957031

May 26, 1995

CLA-2 R:C:M 957031 MMC

CATEGORY: Classification

TARIFF NO.: 7010.90.20

District Director

U.S. Customs Service

P.O. Box 3130

Laredo, TX 78044-3130

RE: PRD 2304-94-100126; other articles of glassware; vase; perfume
bottle;

7013; 7020; ENS 70.20, 70.13 and 70.10; Kraft, Inc., v. United States,
G.

Heilman Brewing Co. v. United States, United States v. Carborundum

Company; HRLs 953386, 953496, 953497, 953585, 953839, 953840, 953846,

95356, 953951

Dear District Director:

This is in response to Protest 2304-94-100126 which pertains to the
tariff

classification of a glass article, described on protestant\'s invoice as
a \"glass

bottle\", under the Harmonized Tariff Schedule of the United States
(HTSUS). A

sample was submitted for our examination.

FACTS:

The merchandise is an empty glass bottle. It has an oval shaped body,

plateau style neck, and a flange style designed to accommodate a
crimp-on

sprayer head. The flange\'s opening measures approximately «\" wide and
is

the only opening for the bottle. The bottle can contain approximately 4
liquid

ounces. Protestant states that the subject article is glassware for use
as flower

holders. Various physical characteristics on the bottles, including mold
seams

and manufacturing information, indicate that the bottles are produced by
the

automatic machine method.

The entry of the glassware was liquidated on May 13, 1994, under

subheading 7010.90.30, HTSUS, as perfume bottles. In a protest timely
filed on

June 14, 1994, protestant contends that the glass bottles are vases
properly

classified under subheading 7020.00.00, HTSUS, as other glassware.

The headings under consideration are as follows:

7010 carboys, bottles, flasks, jars, pots, vias, ampules 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

7013 glassware of a kind used for table, kitchen, toilet, office,

indoor decoration or similar purposes (other than that of

heading 7010 or 7018)

7020 other articles of glass

ISSUE:

Whether the bottles are classifiable under heading 7010, HTSUS, as glass

containers of a kind used for the conveyance of perfume or other toilet

preparations, or under heading 7013, HTSUS, as glassware of a kind used
for

table, kitchen, toilet, office, indoor decoration or similar purposes,
or under

heading 7020, HTSUS, as other articles of glass?

LAW AND ANALYSIS:

Protestant argues that the subject article is used as a flower holder
and

therefore is classifiable under heading 7020, HTSUS, as other articles
of glassware.

We disagree.

Classification of merchandise under the HTSUS is in accordance with the

General Rules of Interpretation (GRI\'s). GRI 1 provides that
classification is

determined according to the terms of the headings and any relative
section or

chapter notes.

In understanding the language of the headings the Explanatory Notes

(ENs) of the Harmonized Commodity Description and Coding System may be

utilized. The ENs, although not dispositive, or legally binding, provide
a

commentary on the scope of each heading of the HTSUS, and are generally

indicative of the proper interpretation of the HTSUS. See, T.D. 89-90,
54 Fed. Reg.

35127, 35128 (August 23, 1989). EN 70.20, p. 945, states, in pertinent
part, that:

This heading covers glass articles (including glass parts of articles)
not

covered by other headings of this Chapter or other Chapters of the

Nomenclature\...

En 70.13, p. 936, states, in pertinent part, that:

This heading covers the following types of articles, most of which are

obtained by pressing or blowing in molds:

\...(4) Glassware for indoor decoration and other glassware (including
that

for churches and the like), such as vases, ornamental fruit bowls,

statuettes, fancy articles (animals, flowers, foliage, fruit, etc.),
table centers

(other than those of heading 70.09), aquaria, incense burners, etc., and

souvenirs bearing views\... (emphasis added).

The heading also excludes:

\...(b) Bottles, flasks, jars and pots of a kind commonly used for the

commercial conveyance or packing of goods, and preserving jars

(heading 70.10)\...

Vases, also known as flower holders, are specifically provided for under
heading

7013, HTSUS. Therefore, they are excluded from classification under
heading

7020, HTSUS. We now must determine whether the subject article is
classifiable

as a vase, for tariff purposes.

Heading 7013, HTSUS, is a use provision. There are two types of

classification by use:

\(1\) according to the actual use of the imported article; and

\(2\) according to the use of the class or kind of goods to which the

imported article belongs.

Tariff classification of goods controlled by actual use is specifically

provided for in sections 10.131-10.139, Customs Regulations \[19 CFR
10.131-10.139\]. According to these regulations, an actual use provision
is satisfied if: (1)

such use is intended at the time of importation, (2) the article is so
used, and (3)

proof of such use is furnished within three years after the date the
article has

been entered. No language present in heading 7013, HTSUS, indicates that
it is

an actual use provision.

Use according to the class or kind of goods to which the imported
article

belongs is more prevalent in the tariff schedule. A few tariff
provisions expressly

state that classification is based on the use of the class or kind of
goods to which

the imported article belongs. However, in most instances, this type of

classification is inferred from the language used in a particular
provision.

Heading 7013, HTSUS, contains, in pertinent part, the language \"of a
kind used

for\". This language clearly indicates that this is a tariff provision
controlled by use

according to the class or kind of goods to which the imported article
belongs.

When an article is classifiable according to the use of the class or
kind of

goods to which it belongs, Additional U.S. Rule of Interpretation 1(a),
HTSUS,

provides that:

in the absence of special language or context which otherwise
requires\--

\(a\) 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. In other words, the article\'s principal use at the time
of

importation determines whether it is classifiable within a particular
class or

kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides
general criteria

for discerning the principal use of an article, it does not provide
specific criteria

for individual tariff provisions.

However, the U.S. Court of International Trade (CIT) has provided
factors,

which are indicative but not conclusive, to apply when determining
whether

merchandise falls within a particular class or kind. They include:
general physical

characteristics, the expectation of the ultimate purchaser, channels of
trade,

environment of sale (accompanying accessories, manner of advertisement
and

display), use in the same manner as merchandise which defines the class,

economic practicality of so using the import, and recognition in the
trade of this

use. See: Kraft, Inc., v. United States, USITR, 16 CIT 483, (June 24,

1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States,
USITR, 14 CIT

614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA
98,

C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Whether an article belongs to the class or kind, glassware of a kind
used

for indoor decoration, provided for under heading 7013, HTSUS, is
determined by

the application of Additional U.S. Rule of Interpretation 1(a), HTSUS,
and the Kraft

factors. As a general rule, at the time of importation, an article\'s
physical

characteristics will indicate its principal use and thus its
classification within a

particular class or kind.

Customs is of the opinion, that at the time of importation, the physical

characteristics of the subject article indicate that it does not belong
to the class

or kind \"glassware principally used for indoor decoration\" but rather
to the class

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

goods\" provided for in heading 7010, HTSUS.

The subject article\'s opening, neck and flange are all physical

characteristics that are not consistent with that of a vase. Vases have
large

openings to accommodate several stems and generally do not have necks

and flanges. Conversely, EN 70.10 (p. 933 - 934) states that:

\...glass containers of the kinds commonly used commercially for the

conveyance or packing of liquids or of solid products (powders,
granules,

etc.)\...include:

\...(B) Jars, pots and similar containers for the conveyance or packing
of

certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.),

cosmetic or toilet preparations(face creams, hair lotions, etc.),

pharmaceutical products(ointments, etc.), polishes, cleaning

preparations, etc.

These articles are usually made of ordinary glass(colorless, or tinted)
by

pressure in a mold usually followed by blowing with compressed air. They

generally have a large opening, a short neck (if any) and as a rule, a
lip

or flange to hold the lid or cap. Some of these containers, however, may

be closed by corks or screw stoppers.

The subject article while not having a large opening, does have a short,

plateau neck, and a flange designed to hold a crimp-on sprayer head.
Since

the inception of the HTSUS, entries of empty glass perfume spray bottles
with lips

to accommodate crimp-on sprayer heads have consistently been liquidated

under subheading 7010.90.20, HTSUS. See Headquarters Ruling Letters
953386,

953496, 953497, 953585, 953839, 953840, 953846, 95356 and 953951 dated
April

22, 1993.

The empty glass perfume spray bottles are specifically provided for
under

subheading 7010.90.20, HTSUS. They are containers of a kind principally
used for

the conveyance or packing of perfume. Unlike the vases of heading 7013,

HTSUS, the subject bottles are not principally used for indoor
decoration.

HOLDING:

The protest should be DENIED. The empty glass perfume spray bottles are

classifiable under subheading 7010.90.20, HTSUS, as glass containers of
a kind

used for the conveyance or packing of perfume or other toilet
preparations.

The general, column one rate of duty is 3.7 percent ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065,

dated August 4, 1993, Subject: Revised Protest Directive, this decision
should be

mailed by your office to the protestant no later than 60 days from the
date of

this letter. Any reliquidation of the entry in accordance with this
decision must

be accomplished prior to the mailing of the decision. Sixty days from
the date

of this decision, the Office of Regulations and Rulings will take steps
to make the

decision available to Customs personnel via the Customs Rulings Module
in ACS

and to the public via the Diskette Subscription Service, Freedom of
Information

Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division