CLA-2 OT:RR:CTF:TCM HQ H245572 NCD
Port Director
U.S. Customs and Border Protection
John F. Kennedy International Airport Bldg #77 Jamaica, NY 11430
Attn: Asude Deniz, Senior Import Specialist
Re: Protest and Application for Further Review No: 4601-13-100761; empty glass Air Wick® bottles
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 4601-13-100761, timely filed on May 30, 2013, on behalf of Berlin Packaging LLC (“Protestant”) regarding the tariff classification of empty glass Air Wick® bottles under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of half-cylindrical 30 ml glass bottles designed for use with an Air Wick® Scented Oil Warmer (“warmer”). The bottles measure 50 cm in height, are imprinted on the side with the words “Air Wick,” and contain a round, threaded neck that enables their connection to, and placement within, the warmer. The bottles are empty at the time of importation, but are subsequently filled with fragrance oil, fitted with a wick and cap, and packaged for retail sale as “scented oil refills” for the warmer. When connected, the warmer and refill bottle form a complete Air Wick® unit. When the complete unit is plugged into an A/C electrical outlet via the warmer, the warmer heats the wick inside the bottle, in turn heating the oil and releasing a fragrance into the surrounding area. Our research confirms that bottles are only put up for retail sale in their scented oil refill form, i.e., once they have been filled with a fragrance oil and fitted with the wick and cap.
The instant protest pertains to thirty-nine (39) entries of the subject empty bottles entered in the Port of New York/Newark between January 21, 2012 and November 17, 2012. The bottles were entered 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). They were variously liquidated on February 22, 2013 and March 8, 2013 in subheading 8516.90.90, HTSUS, which provides for “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: Parts: Other.” Protestant asserts that the bottles are properly classified in subheading 7010.90.50.
ISSUE:
Whether the subject merchandise is properly classified as glass containers for the conveyance or packing of goods under heading 7010, HTSUS, or as parts of an electrothermic appliance used for domestic purposes under heading 8516, HTSUS?
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, within 180 days of liquidation of the first entry. (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. 4601-13-100761 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because Protestant alleges that the specific circumstances of this protest have not been ruled by the Commissioner of Customs or his designee or the Customs courts.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (AUSRIs). The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
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)
8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:
8516.90 Parts:
8516.90.90 Other
In defining “part” for tariff classification purposes, the courts have fashioned two distinct, but not inconsistent, tests for determining whether a particular item qualifies as such. See Bauerhin Techs. Ltd. P’ship. v. United States, 110 F.3d 774, 778-79 (Fed. Cir. 1997). Under the first test, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), an imported item is a part only if it is “something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article.” The second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), equates “part” to “an imported item dedicated solely for use with another article.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 13).
Even if an item satisfies one or both of these tests in relation to a finished good, it only qualifies as a “part” of the good if it bears a “direct relationship” to the good, such that the good is the “primary article” of which the item is a component. See HQ 255855, dated May 27, 2015. Otherwise, as the Court of International Trade (C.I.T.) and Customs Court have held, the item will be considered merely a “part” of whatever intermediate part constitutes the primary article. Mitsubishi Elecs. Am. v. United States, 19 C.I.T. 378, 383 n.3 (Ct. Int’l Trade 1995) (“[A] subpart of a particular part of an article is more specifically provided for as a part of a part than as a part of the whole.”); C.F. Liebert v. United States, 287 F. Supp. 1008, 1014 (Cust. Ct. 1968) (holding that parts of clutches that are parts of winches are more specifically provided for as parts of clutches than as parts of winches)). CBP has consistently adhered to this principle by excluding parts of “primary articles” from HTSUS “parts provisions” where only the primary articles themselves are parts classifiable in such provisions. For example, in HQ H169057, dated September 4, 2014, we ruled that a front frame designed to reinforce a wind engine, which in turn constituted one of two components of a wind generator, could not be classified as part of the wind generator itself. Similarly, in HQ H005091, dated January 24, 2007, we excluded from heading 8708, which provides for motor vehicle parts, a trunk assembly that constituted one of several component parts of an automobile trunk lock. See also HQ 020958, dated November 28, 2008; and HQ 963325, dated September 15, 2000.
In the instant case, the subject bottles are uniquely designed to connect to and fit within the warmer. We note that in New York Ruling Letter (NY) N198195, dated January 19, 2012, CBP held that the scented oil refills were parts of the complete Air Wick® unit for classification purposes. However, the empty bottles at issue here are not intended or suited for direct use in the warmer, as they have not been filled with fragrance oil and fitted with a wick and cap. Although the empty bottles connect directly to the warmers, they do not function as a part of the Air Wick® unit without the scented oil and wick. Therefore, like the part of a wind generator part in HQ H169057 and part of a car part in HQ H005091, the subject empty bottles lack the requisite direct relationship with the complete Air Wick® unit to be considered parts of the latter. Instead, to the extent that these bottles qualify at all as parts, their “primary articles” would be the scented oil refills.
In light of NY N198195, and in accordance with the aforementioned C.I.T. and Customs Court jurisprudence, the subject bottles are therefore “parts of parts” that cannot, in and of themselves, be considered parts of whole electrothermic appliances for purposes of classification in heading 8516. As in HQ 020958 and HQ H005091, because heading 8516 does not provide for parts of parts of such appliances, the subject bottles are not described by heading 8516 and must be excluded from the heading. Furthermore, they are not described as parts in any other provision of the HTSUS. Hence, neither Note 2(b) to Section XVI nor AUSRI 1(c) applies.
We next consider whether the bottles are classified in heading 7010, which covers, inter alia, glass containers used for the conveyance or packing of goods. EN 70.10 states, in pertinent part, as follows:
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:
Carboys, demijohns, bottles (including syphon vases), phials and similar containers, of all shapes and sizes, used as containers for chemical products (acides, etc.), beverages, oils, meat extracts, perfumery preparations, pharmaceutical products, inks, glues, etc.
Consistent with this EN, the C.I.T. recently held, in the particularly instructive Latitudes Int’l Fragrance, Inc. v. United States, that heading 7010 covers “merchandise…used to carry or transport fragranced oil from one place to another or serve as a channel or medium to cause the fragrance oil to pass from one place to another.” 931 F. Supp. 2d 1247, 1253 (Ct. Int’l Trade 2013). In that case, the C.I.T. reviewed CBP’s classification of empty glass “diffuser bottles” that, once imported, were filled with fragranced oil, fitted with stoppers and diffuser reeds, and packaged for sale as “diffuser kits” used for the dispersion of fragrances in enclosed spaces. Id. at 1250. Noting that the diffuser bottles were specially designed to contain the fragranced oil and were sent to market only when filled with the oil, the court determined that the bottles’ principal use was as vessels for the conveyance of fragranced oils (rather than as decorative glassware). Id. at 1254-57. Based on this determination, the court concluded that the bottles were properly classified in heading 7010. Id. at 1257.
In the instant case, it is undisputed that the subject glass bottles are likewise used principally as containers for fragrance oils. Like the diffuser bottles in Latitudes, the subject bottles are designed in a way that enables them, upon the fitting of a stopper, to encapsulate the fragrance oil added after importation. Additionally, like the diffuser bottles, the subject bottles are entered only in their pre-filled forms. That the bottles are uniquely constructed to connect to and fit within the warmer, which in turn functions solely to disperse fragrances emitted from the oil, indicates that the bottles’ only intended function is the containment of oil to be dispersed. In fact, no other use of the bottles, decorative or otherwise, has even been suggested. Accordingly, in light of EN 70.10 and the C.I.T.’s determination in Latitudes that highly similar bottles were properly classified in heading 7010, we conclude that the subject bottles are also classifiable there.
In effect, the subject bottles must be classified in heading 7010, as this is the only provision under consideration that specifically describes the bottles as entire articles. We note that even if these bottles were, for argument’s sake, prima facie classifiable in heading 8516 as parts of electrothermic appliances, they are excluded from classification there by application of AUSRI 1(c). See Headquarters Ruling Letter (HQ) 967233, dated February 18, 2005 (citing Mitsubishi Int’l Corp. v. United States, 182 F.3d 884 (Fed. Cir. 1999), Sharp Microelectronics Tech., Inc. v. United States, 122 F.3d 1446 (Fed. Cir. 1997), and Nidec Corp. v. United States, 861 F. Supp. 136 (Ct. Int’l Trade 1994), aff’d 68 F.3d 1333 (Fed. Cir. 1995)).
HOLDING:
By application of GRI 1, the subject empty glass Air Wick® bottles are classified in heading 7010, HTSUS. Specifically, they are provided for in subheading subheading 7010.90.5055, HTSUS (Annotated), 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): Of a capacity not exceeding 0.118 liter. The general column one rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to ALLOW the protest.
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 CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website 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