CLA-2 R:C:M 957412 MMC
District Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130
RE: PRD 2304-94-100008; non-electrical lamps and lighting
fittings; Glassware; Drinking glasses; principal use;
Additional U.S. Rule of Interpretation 1(a); Kraft, Inc.,
v. U.S., G. Heilman Brewing Co. v. U.S., U.S. v. Carborundum
Company; 9405.50.40; HRLs 954308, 955935, 953016, 088742
and 089054.
Dear District Director:
The following is our decision regarding PRD 2304-94-100008
concerning your action in classifying and assessing duty on
glassware under the Harmonized Tariff Schedule of the United
States (HTSUS). Protestant has provided a sample as well as
catalog pictures for our review. Information contained in
supplemental submissions dated June 16, 1994, and May 18, 1995,
as well as presented in a meeting on July 20, 1995, were
considered in preparing this ruling.
FACTS:
The subject merchandise (identified as item no. 6146 and
also referred to as No. 6246) is a round glass article measuring
approximately 3¬" high with a diameter of approximately 2 ". The
article is made of clear glass and has a narrow smooth lip. The
thick bottom ( ") is smooth and contains no noticeable mold
seams, knurling, beaded flange finishes or embedded manufacturing
information. It is stated to be valued at .35›.
Protestant states that the articles are imported empty and
sold to only one customer who fills each with candle wax, a wick
and sells them to retailers as candles. The Agreement of
Purchase and Sale between the two companies refers to the
articles as "glass candle holders" and contains design
specifications required by the candle filler. The articles are
produced in Mexico using molds created from the supplied
specifications. According to Protestant, the mold cannot be used
to make candle holders for any other customer nor to make other
glass products.
The articles were entered under subheading 9405.50.40,
HTSUS, which provides for candle holders. The entry was
liquidated on October 22, 1993, and the articles classified under
subheading 7013.29.20, HTSUS, as drinking glasses. A protest was
timely filed on January 19, 1994.
ISSUE:
Are the articles classifiable as drinking glasses under
heading 7013, HTSUS, or as glass candle holders under heading
9405, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. The
subheadings under consideration are:
7013.29 Glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes (other
than that of heading 7010 or 7018)..drinking glasses,
other than of glass ceramics
9405.50 Lamps and lighting fittings including searchlights and
spotlights and parts thereof, not elsewhere specified
or included; illuminated signs, illuminated nameplates
and the like, having a permanently fixed light source,
and parts thereof not elsewhere specified or
included...Non-electrical lamps and lighting fittings
Subheading 7013.29, HTSUS, is considered 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, or any of its subheadings, indicates that
they are actual use provisions. Therefore, they are headings and
subheadings which classify articles according to the class or
kind of goods to which the article belongs.
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.
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:
[i]n 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. U.S., USITR, 16 CIT 483, (June 24,
1992)(hereinafter Kraft); G. Heilman Brewing Co. v. U.S., USITR,
14 CIT 614 (Sept. 6, 1990); and U.S. 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, drinking
glasses, provided for under subheading 7013.29, 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 form will
indicate its principal use and thus its classification within a
particular class or kind. When, however, an article's physical
form indicates its possible classification within more than one
class or kind, Customs considers the other Kraft characteristics.
Physical characteristics which are indicative but not
conclusive of whether a particular article is a drinking glass
include, but are not limited to:
1. The absence of a finish, mold seams, surface knurling
and information embedded in the glass which identifies the
machine that produced it.
2. The manufacture's logo embedded in the glass.
3. The presence of a fire polished lip which is formed
during the production process.
4. A high level of clarity in the glass used to make the
article. A high level of clarity is created by limiting the
use of recycled glass cullet.
5. The article is imported empty.
The subject article has no mold seams, no surface knurling,
no embedded information and no finish. It appears to be made of
a high clarity glass, has a fire polished lip and is imported
empty. All of the physical characteristics indicate that at the
time of importation the article belongs to the class or kind,
drinking glasses. Its size and design is significantly similar
to that of an "old-fashioned" cocktail glass.
Protestant states that evidence of the ultimate purchaser's
expectations, the channel of trade, and the environment of sale
all indicate that the article does not belong to the class,
drinking glasses . In support of this assertion protestant
submitted information indicating that after importation the
article is filled with candle wax and a wick and is sold as a
candle, that invoices and a Purchase and Sales agreement refer to
the article as "candle container" and that the article is not
distributed or sold as or along with, household glassware
articles, but as a gift item. While informative, we do not
believe these factors outweigh the overwhelming physical evidence
which indicates that at importation, this article belongs to the
class, drinking glass.
Protestant suggests that the subject articles are similar to
the glass candle holders described in Headquarter's ruling
letters (HRL) 954308 dated June 6, 1994, HRL 955935 dated May 16,
1994, HRL 953016 dated April 27, 1993, HRL 088742 dated April 22,
1991, and HRL 089054 dated August 2, 1991. All of these rulings
stated that subheading 9405.50.40, HTSUS, provides for non-electrical lamps and lighting fittings, that the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs),
specifically EN 94.05, pg. 1581, provided that lamps and light
fittings of this group can be composed of any material and use
any source of light, including candles and that EN 94.05(I)(6)
provided that this heading covers "...in particular candelabra,
candlesticks, and candle brackets."
Additionally, these rulings held that the terms
"candlestick", "candlestick holder", and "candle holder" are
interchangeable. Candle holder has been defined as a
candlestick, Webster's II New Riverside University Dictionary,
pg. 224 (1st ed. 1984), and as a holder for a candle;
candlestick, The Random House Dictionary of the English Language,
pg. 216 (1st Ed. 1983). Candlestick has been defined as a
utensil for supporting a candle, whether elaborately made or in
the common form of a saucer with a socket in the center,
Webster's New International Dictionary , pg. 390 (2d ed. 1939).
Reference to lexicographic authorities is proper when determining
the meaning of a tariff term. Hasbro Industries, Inc. v. U.S.,
703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J.
Tower & Sons of Buffalo, Inc. v. U.S., 69 CCPA 128, 673 F.2d 1268
(1982).
Moreover, each of these rulings provided that the presence
of certain physical characteristics, was considered indicative of
a glass article's classification as a glass candle holder. These
included, but were not limited to, mold seams, surface knurling,
finishes as noted, and embedded manufacturing and production
machine information. The subject article has none of these.
Accordingly, these rulings provide further support for our
determination that the articles are not of the class or kind
"glass candle holders".
Based on the foregoing information, we find that the
articles are classifiable under subheading 7013.29.20, HTSUS, as
other drinking glasses.
HOLDING:
The protest should be DENIED. The glass articles are
classifiable as drinking glasses under subheading 7013.29.20,
HTSUS, as other drinking glasses.
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