CLA-2 CO:R:C:M: 957206 MMC
District Director
U.S. Customs Service
300 S. Ferry Street, Room: 1001
Terminal Island, CA 90731
RE: PRD 2704-94-102488; Glass ashtrays; Additional U.S. Rule of
Interpretation 1(a); Kraft, Inc., v. United States, G. Heilman
Brewing Co. v. United States, United States v. Carborundum
Company, Group Italglass U.S.A. v. United States
Dear District Director:
The following is our decision regarding Protest 2704-94-102488 concerning your action in classifying and assessing duty
on certain glassware under the Harmonized Tariff Schedule of the
United States (HTSUS). A sample as well as catalog pictures of
the subject article were provided.
FACTS:
The subject article (item no. SK-1550) is a round crystal
pressed glassware with a 6 1/4" diameter. Its interior is
approximately 1 «" deep. Its upper lip is faceted. The spaces
between the facets are «" deep and 3/4" wide. Protestant claims
that the glassware is designed to be used as an astray and that
the facets on its upper lip are designed as a resting place for
cigarettes, cigars and pipes.
Protestant further states that the article is sold to
various retailers. Although the subject article was imported
from Malaysia without packaging for retail sale, protestant
claims that the identical model is imported from Indonesia in a
box designed for retail sale. The box contains a picture of the
ashtray and a description stating "Romance Rose: 6 1/4"-158mm
Ashtray".
Pictures from the importer's catalog display the subject
article under "Crytalware Ashtray item # 1-02137 6" Ashtray Gift
Boxed 24 Sets". Additional pictures provided by protestant
display candy dishes. Each candy dish is accompanied by a cover,
and has no faceted sides.
The subject articles were entered under subheading
7013.99.30, HTSUS, which provides for glass smoker's articles.
Upon liquidation on July 8 and 15, 1994, the articles were
classified under subheading 7013.39.20, HTSUS, as other glassware
of a kind used for table, kitchen or indoor decoration. A
protest was timely filed on September 20, 1994. The subheadings
under consideration are:
7013.39.20 [g]lassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): [g]lassware of a kind used for table (other
than drinking glasses) or kitchen purposes other
than that of glass-ceramics: other : other:
valued not over $3.
7013.99.30 [g]lassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): [g]lassware of a kind used for table (other
than drinking glasses) or kitchen purposes other
than that of glass-ceramics: other glassware:
smoker's articles, perfume bottles with ground
glass stoppers.
ISSUE:
Whether the subject glassware is principally used as a
smoker's article and thus classified under subheading 7013.99.30,
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. Chapter 70, HTSUS,
provides for glass and articles of glass.
Heading 7013, HTSUS, provides in pertinent part, for
glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes. It is considered a "use"
provision. There are two principal 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.
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. Because heading 7013,
HTSUS, contains the language "of the kind" and "used for",
classification of goods under it is determined by the use of the
class or kind of article to which the imported merchandise
belongs.
If 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. United States, USITR, 16 CIT
483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co.
v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United
States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d
373 (1976), cert. denied, 429 U.S. 979.
GRI 6, HTSUS, provides that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to the above
rules, on the understanding that only subheadings at the same
level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires.
Because heading 7013, HTSUS, is a principal use heading,
subheadings 7013.39.20 and 7013.99.30, HTSUS, are considered
controlled by Additional U.S. Rule of Interpretation 1(a), HTSUS.
This necessitates the application of the Kraft characteristics to
the subject glassware to determine under which subheading the
piece is classifiable.
Customs is of the opinion that the general physical
characteristics indicate that it belongs to the class "smoker's
articles". Its faceted lip and the depth and width of each facet
is consistent with a space to rest a cigarette and it is deep
enough to hold the ashes of a cigar and pipe. In addition, the
environment of sale and recognition in the trade of the use of
this article support the classification of the subject article in
the class or kind "smoker's articles". Submitted catalog pictures
indicate that the article is advertised and sold only as an
ashtray. Finally, the articles are invoiced as ashtrays. For
the foregoing reasons, Customs finds that the subject articles
are classifiable as smoker's articles, specifically, ashtrays,
under subheading 7013.99.30, HTSUS.
HOLDING:
The protest should be GRANTED. The crystal ashtrays are
classifiable under subheading 7013.99.30, HTSUS. Their
corresponding column one duty rate is free.
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
Commercial Rulings Division