HQ 957412

August 1, 1995

CLA-2 R:C:M 957412 MMC

CATEGORY: Classification

TARIFF NO.: 7013.29.20

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