HQ 952793: Protest No. 3701-92-100018; milky white colored glass jars;GRI 1; U.S. Additional Note 1(a); subheading 7010.90.50, HTSUS

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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