CLA RR:TC:MM 957853 MMC
Port Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048
Re: Protest 1001-95-100667; candle holders; perfume bottles with
ground glass stoppers; EN 70.13; HRL 957654; NYRL 841833
Dear Port Director:
The following is our response to protest 1001-95-100667
concerning your action in classifying and assessing duty on various
4"and 5" diameter global shaped glass candle holders and perfume
bottles under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples and a catalog with pictures the articles were
included. In preparing this ruling, consideration was given to
supplemental submissions made by counsel on behalf of the
protestant dated September 8, 1995, as well as arguments presented
at a meeting at Customs Headquarters.
The issue concerning the classification of the global shaped
candle holders is whether they are classifiable as non-electrical
lamps and lighting fittings under subheading 9405.50.40, HTSUS, or
as glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes under subheading 7013.99.50,
HTSUS.
Enclosed is a copy of HQ 957654 of this date, which dealt with
the classification of similar global shaped glass candle holders.
As you will note, that ruling contains an extensive analysis of the
relevant law and reasons for our holding that the subject articles
are classifiable under subheading 9405.50.40, HTSUS.
Following the reasoning under HQ 957654, it is our position
that the candle holders which are the subject of this protest are
also classifiable under subheading 9405.50.40, HTSUS.
FACTS:
The articles are glass perfume bottles styles 227106, 227107
and 227108. Pictures, as well as samples of the articles indicate
they consist of smooth clear glass with various colored ground
glass stoppers. Additionally, protestant submitted laboratory
reports which provided the lead percentage of each stopper and body
in question. In a February 6, 1996, memorandum the Customs
Office of Laboratories and Scientific Services reviewed the
submitted lab report and provided the following:
Style Lead Percentage Lead Monoxide
Percentage
Stopper/ Body Stopper/ Body
227106 0.62 mg/kg (ppm) 0.71 mg/kg (ppm) .000066/.000076
227107 0.32 mg/kg (ppm) 0.48 mg/kg (ppm) .000033/.000050
227108 0.83 mg/kg (ppm) 1.06 mg/kg (ppm) .000089/.000114
The merchandise was entered under subheading 7013.99.30,
HTSUS, as perfume bottles fitted with ground glass stoppers. The
entries were liquidated on October 28 and November 4, 1994, under
subheading 7013.91.30, HTSUS, as lead crystal glassware valued over
$3 but not over $5 each. The protest was timely filed on January
26, 1995. The subheadings under consideration are as follows:
7013 Glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes (other than that of
heading 7010 or 7018):
7013.91.30 Other glassware: Of lead crystal: Valued over $3
but not over $5 each
7013.99.30 Other glassware: Other: Other: Smokers' articles;
perfume bottles fitted with ground glass stoppers
7013.99.50 Other glassware: Other: Other: Valued over $0.30
but not over $3 each
ISSUE:
Are the subject bottles classifiable as perfume bottles with
ground glass stoppers, other glassware or as lead crystal
glassware?
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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
For purposes of this protest we must first determine whether
the bottles are made of lead crystal. Subheading Note 1 to
Chapter 70, HTSUS, states, in pertinent part, that:
For the purposes of subheadings 7013.21, 7013.31 and 7013.91,
the expression "lead crystal" means only glass having a
minimum lead monoxide (PbO) content by weight of 24 percent.
According to analysis of protestant's submitted lab report provided
by the Customs Office of Laboratory and Scientific Services, the
percentage of lead monoxide for all subject articles is extremely
low. The lead monoxide percentages do not meet the subheading note
requirement. This, together with the submitted perfume bottle's
physical appearance, indicates that the articles are not composed
of lead crystal. Therefore, they are not classifiable as other
glassware of lead crystal.
Heading 7013 provides for a kind of glassware principally
used for table, kitchen, toilet, office, indoor decoration or
similar purposes. In an effort to determine if the bottles are
provided for under heading 7013, HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) may be
consulted. The ENs, although not dispositive nor legally binding,
provide a commentary on the scope of each heading of the HTSUS and
are generally indicative of the proper interpretation of these
headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23,
1989).
EN 70.13, pg. 936-937, states, in pertinent part, that:
This heading covers the following types of articles, most of
which are obtained by pressing or blowing in moulds:...
(2) Toilet articles, such as soap-dishes, sponge-baskets,
liquid soap distributors, hooks and rails (for towels, etc.),
powder bowls, perfume bottles, parts of toilet sprays (other
than heads) and toothbrush holders...
(3)...
(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 centres (other than
those of heading 70.09), aquaria, incense burners, etc., and
souvenirs bearing views.
These articles may be e.g., of ordinary glass, lead crystal,
glass having a low coefficient of expansion (e.g.,
borosilicate glass) or of glass ceramics (the latter two in
particular, for kitchen glassware). They may also be
coulourless, coloured or of flashed glass, and may be cut,
frosted, etched or engraved, or otherwise decorated, or of
plated glass (for example, certain trays fitted with handles).
Table centres consisting of a simple mirror are, however,
excluded (see Explanatory Note to heading 70.09).
According to the ENs, both perfume bottles and glass decorative
fancy articles are provided for under heading 7013, HTSUS. We
believe that the subject bottles are either one or the other.
Therefore, they are described by heading 7013, HTSUS. Heading
7013, is further divided into many subheadings, two of which prima
facie describe the subject bottles, subheading 7013.99.30 and
7013.99.50, HTSUS.
GRI 6, HTSUS, provides in pertinent part, that the
classification of goods in subheadings of the same heading shall be
according to the terms of those subheadings and any related
subheading notes and, by appropriate substitution of terms,
according to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable. Inasmuch as the
subject bottles are prima facie described in two different
subheadings, they cannot be classified according to GRI 1.
When goods cannot be classified by applying GRI 1, and if the
headings and legal notes do not otherwise require, the remaining
GRI's are applied.
GRI 3 states, in pertinent part, that when goods are, prima
facie, classifiable under two or more headings, classification
shall be effected as follows:
(a) The heading which provides the most specific description
shall be preferred to headings providing a more general
description.
The language of subheading 7013.99.30, HTSUS, clearly
indicates that all perfume bottles with ground glass stoppers are
described by the subheading. Neither the subheading or the
relevant EN provide any size limitations. Additionally, protestant
has submitted catalogs and samples which indicate that all styles
are principally used as perfume bottles. Alternatively,
subheading 7013.99.50, HTSUS, merely provides for all other
articles, within a certain value range, which do not meet the
description provided by other subheadings. See New York Ruling
Letter 841883 dated June 22, 1989, in which other empty perfume
bottles with ground glass stoppers were classified under subheading
7013.99.30, HTSUS.
We are of the opinion that subheading 7013.99.30, HTSUS,
provides the most specific description of the bottles. Therefore,
they are classifiable under that subheading.
HOLDING:
The protest should be GRANTED. The perfume bottles are
classifiable under subheading 7013.99.30, HTSUS, as perfume bottles
with ground glass stoppers, with a column one rate of duty of 9% ad
valorem. The subject candle holders are classifiable under
subheading 9405.50.40, HTSUS, as non- electrical lamps and lighting
fittings, with a column one duty rate of 7% ad valorem.
In accordance with Section 3A (11) (b) of Customs Directive
0993550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision, together with the Customs Form 19, 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 the decision must be accomplished prior to mailing the decision. Sixty days from the
date of the decision, the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel via
the Customs Ruling Module, ACS, and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification Division