CLA-2-85:CTF:TCM H097637 MG
Port Director
U.S. Customs and Border Protection
Los Angeles/Long Beach Seaport
301 East Ocean Boulevard
Suite 1400
Long Beach, California 90802
RE: Application for Further Review of Protest Number 2720-09-100584; Classification of a glass diffuser bottle from China
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest Number 2720-09-100584, timely filed by Michael Grace of Grace & Grace, on behalf of Maesa Home (“the Protestant”), concerning the classification of a glass diffuser bottle (“the bottle”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).
In reaching our decision, we have taken into consideration arguments made by counsel in the memorandum in support of protest and application for further review, dated November 19, 2009, as well as a teleconference held with counsel, on September 20, 2010. A sample of the glass diffuser bottle was also submitted.
FACTS:
The merchandise at issue is Item Number 30-14-0000, a small, round, clear glass jar with a short neck and a rubber stopper. It measures approximately 3.8 inches in height, 2.7 inches in diameter and has a decal logo which measures ¾ inches in diameter. The bottle is imported empty and, after importation, it is filled with fragrant diffuser oil and sealed with a rubber stopper. The bottle is not intended to be reused or refilled for any purpose.
The merchandise at issue was entered on September 16, 2009, as a bottle 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: Other: Other containers (with or without their closures.”
On October 2, 2009, CBP liquidated the entry under subheading 7013.99.50, HTSUS, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Valued over $0.30 but not over $3 each.”
ISSUE:
What is the classification of the glass diffuser bottle from China?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on November 24, 2009, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2720-09-100584 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the denial would be inconsistent with previous Customs actions regarding identical or similar merchandise.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The HTSUS provisions under consideration are as follows:
7010 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
7010.90 Other
7010.90.50 Other containers (with or without their closures)
* * * * * * * * * * *
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
Other glassware
7013.99 Other
Other
7013.99.50 Valued over $0.30 but not over $3 each
* * * * * * * * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
The EN to heading 7010, HTSUS, states, in pertinent part:
This heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They include:
(A) Carboys, demijohns, bottles (including syphon vases), phials and similar containers, of all shapes and sizes, used as containers for chemical products (acids, etc.), beverages, oils, meat extracts, perfumery preparations, pharmaceutical products, inks, glues, etc.
These articles, formerly produced by blowing, are now almost invariably manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air. They are usually made of ordinary glass (colourless or coloured) although some bottles (e.g., for perfumes) may be made of lead crystal, and certain large carboys are made of fused quartz or other fused silica.
The above-mentioned containers are generally designed for some type of closure; these may take the form of ordinary stoppers (of cork, glass, etc.), glass balls, metal caps, screw caps (of metal or plastics), or special devices (e.g., for beer bottles, bottles for aerated waters, soda water syphons, etc.).
These containers remain in this heading even if they are ground, cut, sand-blasted, etched or engraved, or decorated (this applies, in particular, to certain perfume or liqueur bottles), banded, wickered or otherwise trimmed with various materials (wicker, straw, raffia, metal, etc.); they may also have tumbler-caps fitted to the neck. They may be fitted with drop measuring devices or may be graduated, provided that they are not of a kind used as laboratory glassware.
The EN to heading 7013, HTSUS, states, in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
(1) Table or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar-bowls, sauce-boats, fruit-stands, cake-stands, hors-d’oeuvres dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice-buckets.
(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 tooth-brush holders.
(3) Office glassware, such as paperweights, inkstands and inkwells, book ends, containers for pins, pen-trays and ashtrays.
(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.
Protestant argues that classification under heading 7010, HTSUS, is consistent with prior rulings. Specifically, protestant claims that the merchandise classified in New York (NY) N048031, dated January 23, 2009, N041694, dated October 29, 2008, L88177, dated November 14, 2005, and I82562, dated June 12, 2002, consisted of similar glass bottles, classified under heading 7010, HTSUS, as jars that are used for conveyance or packing. Protestant posits that, as in the instant case, the classification in the NY ruling under heading 7010, HTSUS, is based on the fact that, once used, the bottles would not be reused once the reeds and scented oil with which they were sold were finished.
We note at the outset, that NY N048031, was revoked by Headquarters Ruling Letter, HQ H078900, dated May 11, 2010. We agree with the Protestant’s assertion that the diffuser bottle in NY N048031 is similar to the instant glass bottle. As noted in H078900, bottles, flasks, jars, pots, vials and other containers of a kind used for the conveyance or packing of goods of heading 7010, HTSUS, are jars that are designed to remain closed as they transport liquids or solids from one location to another. Glassware of the kind used for table, kitchen, toilet, office, indoor decoration or similar purposes of heading 7013, HTSUS, are designed to be displayed in the home or office as they hold material inside of them. They may remain open as they display their contents and are meant to lend decoration to the items they display.
Protestant submits that the glass bottle is used to convey diffuser oil. Protestant furthers states that the instant glass diffuser bottles “have an attractive appearance as packaging for their contents (diffuser oil), but are not for reuse and do not qualify as decorative,” inasmuch as they are not imported with a closure mechanism and the rubber stoppers are affixed after the bottles are filled with diffuser oil in the United States. See, Attachment to the protest, dated November 19, 2009, at pages 1 and 2.
With regard to the merchandise in N041694, L88177, and I82562, these jars were described as being imported with lids or caps, which is a factor in defining whether they are used for the conveyance of goods. The merchandise in I82562, was, in fact, for the conveyance of olives or capers. Hence, the merchandise in those cases was not substantially similar to the subject goods in the instant case. We note that the subject merchandise is also the same as the reed diffuser bottles that CBP routinely classifies in heading 7013, HTSUS. (See, e.g., HQ 960162, dated October 17, 1997; HQ 956470, dated September 28, 1994; HQ 961409, dated October 22, 1998, for a detailed explanation on the characteristics that differentiate bottles of heading 7010, HTSUS, and bottles of heading 7013, HTSUS). Given the similarities between the instant glass diffuser bottle and the bottles of the rulings noted above, and the analysis set forth in HQ 078900, on substantially similar merchandise, the subject glass diffuser bottle is described by the terms of heading 7013, HTSUS.
HOLDING:
By application of GRI 1, the glass diffuser bottle is provided for in heading 7013, HTSUS. Specifically, it is classified under subheading 7013.99.50, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: other: Valued over $0.30 but not over $3 each. As such, the rate of duty is 30% ad valorem.
You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, 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 of the decision. Sixty days from the date of the decision, Regulations and
Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division