> HQ 965200

# July 10, 2002

> CLA-2 RR:CR:GC 965200 AML
>
> **CATEGORY:** Classification
>
> **TARIFF Nos.:** 7010.90.50; 7013.39.50; 7013.39.60; 7013.99.50;
>
> 9405.50.40
>
> Port Director
>
> U.S. Customs Service
>
> 1500 Port Blvd.
>
> Miami, FL 33132
>
> **RE:** Protest 5201-00-100573; glass articles
>
> Dear Port Director:
>
> This is in response to protest 5201-00-100573 (the apparent "lead"
> protest), which pertains to the tariff classification of certain
> articles of glass under the Harmonized Tariff Schedule of the United
> States (HTSUS); this ruling also addresses protests 5201-00-100574 and
> 5201-00-100792, which concern entries of similar articles and were
> suspended pending the determination of protest 5201-00-100573; this
> ruling also addresses protest 5201-00-100369, filed by a surety for
> the importer and also suspended pending determination of the lead
> protest. Pictorial representations and catalogue descriptions of the
> goods were submitted for our examination. Consideration was given to
> the presentation of counsel for the protestant in a telephone
> conference with representatives of this office on May 31, 2002, as
> well as a supplemental submission received on June 11, 2002.
>
> **FACTS:**
>
> Five entries, filed June 3, 25 and 29, July 19 and September 15, 1999,
> are included in the lead protest, which is against the classification
> of the various styles of glassware entered in the protested entries.
> The glassware is described in the following table (in order by entry
> and as the items appear in the invoice for each entry, unless
> otherwise noted; the following designations/abbreviations apply: La
> Mediterranea = LM; Vetreria Etrusca = VE; Shandong Gaomi = SG; H =
> height; W =width):

**Factory/# Protestant's \# Description**

LM 5023 605023 Puchades Jar, 1000 ml capacity

3" opening with 1" lip

W 5.87" H 5.52"

cork closure

LM 5024 605024 Puchades Jar, 500 ml capacity

2.5" opening with 1" lip

> W 4.61" H 4.53"

cork closure

LM 5025 605025 Puchades Jar, 250 ml capacity

2" opening with 1.75" lip

> W 3.66" H 3.66"
>
> cork closure

LM 5028 605028 Mielera Jar, 1000 ml capacity

2" opening with 1.75" lip

> W 5.12" H 4.93"
>
> cork closure

LM 5029 605029 Mielera Jar, 500 ml capacity

2.25" opening with 1" lip

> W 4.33" H 4.49"
>
> cork closure

LM 5030 605030 Mielera Jar, 250 ml capacity

2" opening with 1.75" lip

> W 3.74" H 3.98"

cork closure

LM 5077 605077 Cuadrado Big Square

3.37" opening with .25" lip

> W 3.37" H 4.73"

LM 5079 605079 Cuadrado Small Square

3.37" opening with .25" lip

> W 3.37" H 3.15"

LM 9046 609046 Redonodo Small Flower Pot

2.51" opening with .25" lip

> W 2.51" H 2.56"

**Factory/# Protestant's \# Description**

LM 9131 609131 Ecologic flower

4.48" opening with .25" lip

> W 4.48" H 4.48"

LM 9135 609135 Ecologic mini flower

2.31" opening with .25" lip

> W 2.31" H 3.15"

LM 9154 609154 Margarita small flower

1.5" opening with 3.5" lip

W "taper" H 2.5"

VE 02991177 100610 Vaso Leonardo, 106 ml capacity

1.6" opening with .32" lip

W 2.64" H 2.52"

VE 02991178 100611 Vaso Leonardo, 212 ml capacity

2" opening with .32" lip

W 3.36" H 3.04"

VE 02991178 100612 Vaso Leonardo, 314 ml capacity

2.2" opening with .32" lip

W 3.68" H 3.28"

VE 03001180 100613 Vaso Leonardo, 370 ml capacity

2.48" opening with .32" lip

W 3.80" H 3.40"

VE 02001363 100650 Vaso Quadro Firenze, 212 ml capacity

1.8" opening with .32" lip

W 2.84" H 3.20"

VE 02001564 100520 Quadrotta, 500 ml capacity

.8" opening with .32" lip

W 2.92" H 7.12"

cork closure

VE 02001660 100532 Giotto, 500 ml capacity

.68" opening with .32" lip

W 2.88" H 14"

cork closure

**Factory/# Protestant's \# Description**

VE 02001669 100530 Giotto, 100 ml capacity

.36" opening with .32" lip

W 1.8" H 9"

cork closure

VE 02002094 100531 Giotto, 200 ml capacity

.44" opening with .32" lip

W 2.16" H 10.80"

cork closure

VE 02002903 100202 Cuore Collo Stretto, 100 ml capacity

.48" opening with .25" lip

W 3.04" H 5.04"

cork closure

VE 02003795 100550 Rafaello Quadra, 200 ml capacity

.44" opening with .32" lip

W 2.00" H 10.80"

cork closure

VE 02001733 100080 Mezzo Onda Piu, 250 ml capacity

.80" opening with .32" lip

W 2.72" H 7.76"

cork closure

VE 02001126 100090 Mezzo Onda Meno, 250 ml capacity

.80" opening with .32" lip

W 2.72" H 7.76"

cork closure

VE 02001219 100430 Vaso Giotto, 380 ml capacity

2.48" opening with .32" lip

W 4.00" H 3.96"

VE 02001498 100080 Strauss, 200 ml capacity

.76" opening with .32" lip

W 3.24" H 4.24"

cork closure

VE 02003570 100380 Lipari, 100 ml capacity

.40" opening with .32" lip

W 1.80" H 10.80"

cork closure

**Factory/# Protestant's \# Description**

VE 02002090 100370 Salina, 100 ml capacity

.40" opening with .32" lip

W 1.92" H 10.80"

cork closure

VE 02002045 100170 Luna, 200 ml capacity

.68" opening with .32" lip

W 2.72" H 7.76"

cork closure

VE 02001686 100270 Pesce Squalo, 750 ml capacity

.80" opening with .32" lip

W 3.80" H 14.32"

cork closure

VE 03000739 100040 Goccia, 100 ml capacity

.28" opening with .32" lip

W 2.32" H 7.08"

cork closure

VE 02001481 100340 Beethoven, 500 ml capacity

.80" opening with .32" lip

W 3.72" H 12.72"

cork closure

VE 02001441 100350 Rossini, 500 ml capacity

.68" opening with .32" lip

W 3.60" H 12.72"

cork closure

VE 02003769 100290 Cammello, 200 ml capacity

.68" opening with .32" lip

W 4.40" H 8.64"

cork closure

VE 02000913 100100 Cuadra Onda, 250 ml capacity

.68" opening with .32" lip

W 2.32" H 6.12"

cork closure

VE 02003716 100450 Vaso Le Carre, 200 ml capacity

> 3.48" opening with bail and trigger closure
>
> W 3.48" H 2.48"

**Factory/# Protestant's \# Description**

VE 02002797 100460 Vaso Le Carre, 350 ml capacity

> 3.48" opening with bail and trigger closure
>
> W 3.48" H 3.76"

VE 02001847 100060 Palline, 100 ml capacity

.32" opening with .28" lip

W 2.32" H 7.08"

> cork closure

VE 02001717 100275 Pesce Luna, 750 ml capacity

.76" opening with .36" lip

W 6.16" H 9.32"

> cork closure

VE 02001562 100510 Quadrotta, 100 ml capacity

.56" opening with .32" lip

W 1.96" H 3.88"

cork closure

VE 02001563 100515 Quadrotta, 250 ml capacity

.56" opening with .32" lip

W 2.48" H 5.36"

> cork closure

VE 02001978 100525 Michelangelo, 100 ml capacity

.48" opening with .2" lip

W 2.00" H 9"

cork closure

VE 02001978 100526 Michelangelo, 200 ml capacity

.48" opening with .28" lip

W 2.36" H 10.8"

cork closure

VE 02001978 100527 Michelangelo, 500 ml capacity

.76" opening with .24" lip

W 2.8" H 14"

cork closure

**Factory/# Protestant's \# Description**

VE 02001976 100540 Raffaelo, 100 ml capacity

.48" opening with .2" lip

W 1.6" H 9"

cork closure

VE 02002101 100541 Raffaelo, 200 ml capacity

.48" opening with .28" lip

W 2.00" H 10.80"

cork closure

VE 02002142 100570 Vienna, 200 ml capacity

.48" opening with .32" lip

W 2.40" H 8.88"

cork closure

VE 02001685 100280 Pesce, 750 ml capacity

.76" opening with .36" lip

W 4.48" H 13.60"

> cork closure

VE 100581 Onda Alta, 200 ml capacity

.56" opening with .32" lip

W 2.00" H 8.28"

cork closure

VE 100400 Onda Alta, 100 ml capacity

.48" opening with .32" lip

W 1.52" H 6.76"

cork closure

VE 03001403 100260 Cavallucio Marino, 200 ml capacity

.76" opening with .24" lip

W 3.72" H 9.40"

cork closure

VE 03000628 100430 Vaso Giotto, 380 ml capacity

2.48" opening with .32" lip

W 4.00" H 3.96"

VE 98000101 100470 Vaso Le Carre, 500 ml capacity

> 3.28" opening with bail and trigger closure
>
> W 3.48" H 4.92"

**Factory/# Protestant's \# Description**

VE 02001232 100600 Toledo, 100 ml capacity

> .48" opening with .32" opening

W 2.56" H 4.52"

cork closure

On May 15, 2002, a member of my staff confirmed with counsel for the
protestant that the articles listed above comprise the articles
contained in three of the five protested entries: WYQ-2002-4740,
WYQ-2002-6745 and WYQ-2002-3494. From the entry summaries for the
remaining entries, we note the remaining styles that are subject of the
protest (duplicated styles are not repeated):

**Factory/# Protestant's \# Description**

SG 933 Melon Jar 1.7 liter with cork lid

SG 928 Melon Jar 3.7 liter with cork lid

SG 929 Melon Jar 7 liter with glass lid

SG 930 Melon Jar 16 liter with glass ball top

SG 901 Orcio Hermetic Jar with hinged glass

SG 702LE 12" Square pasta with cork lid

SG 6701 Chairman Jar .85 liter

SG 6702 Chairman Jar .4 liter with cork lid

SG 9801 Fruit Basket Shaped Jar

SG GS-23 Quadra Etung

SG 3501-4 Square Jar .85 liter with cork lid

The protestant states that "most of the samples" are used as glass
candle holders. The protestant states that the articles are imported
empty and following importation will be filled with candle wax or gel
and wick. For these reasons, the protestant asserts that the articles
are classifiable under heading 9405, HTSUS, which provides for
"non-electric lamps and light fittings." Specifically, the protestant
contends that articles numbered 605079, 609154, 609046, 605077, 609135,
605030, 609131, 605028, 605029, 605025, 605023, 605024 should be so
classified.

The protestant states that other samples should be classified under
heading 7010, HTSUS, which provides for glass containers commonly used
commercially for the conveyance and packing of goods. Specifically, the
protestant contends that articles numbered 100280, 100470, 100570,
100581, 100260, 100400, 100430, 100541, 100526, 100540, 100527, 100525,
100275, 100515 and 100510 should be so classified.

The entries were made on June 3, 25 and 29, July 19 and September 15,
1999, and the entries were liquidated on September 15, 2000. All of the
merchandise was classified under subheadings 7013.39 and 7013.99, HTSUS,
as table or kitchen glassware or decorative glassware, respectively,
depending at the eight-digit level upon value. On December 13, 2000,
counsel for the protestant filed this protest, arguing alternatively as
described above and below that the merchandise is of a kind used for the
conveyance or packing of goods and should be classified in heading 7010,
HTSUS, or as non-electric lamps and light fittings (candleholders) under
heading 9405, HTSUS.

**ISSUE:**

Whether the glassware is classifiable as preserving jars of glass or
containers of a kind used for the conveyance or packing of goods under
heading 7010, HTSUS, or glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar purposes under heading
7013, HTSUS, or as non-electric lamps and light fittings under heading
9405, HTSUS?

**LAW AND ANALYSIS:**

Initially, we note that the lead protest (5201-00-100573, so too were
protests 5201-00-100574 and 5201-00-100792) was timely filed (*i.e*.,
within 90 days after but not before the notice of liquidation; see 19
U.S.C. §1514(c)(3)(A)) and the matter protested is protestable (see 19
U.S.C. §1514(a)(2) and (5)).

With regard to protest 5201-00-100369[^1], we note that the affected
entries were liquidated on September 15, 2000 and the protest bears a
filing date of April 9, 2001 -- 206 days after liquidation. Using the
September 15, 2000, date as the date of filing of the protest, the
protest was untimely filed (*i.e*., a protest must be filed within 90
days after but not before the notice of liquidation (19 U.S.C.
§1514(c)(3)(A); 19 C.F.R. §174.12(e)). The notice of liquidation was
dated September 15, 2000, and the protest was filed April 9, 2001, 206
days after the notice of liquidation). For an example of the judicial
treatment of a protest filed after the 90-day period for filing a
protest, see *Penrod Drilling Co. v. United States*, 13 CIT 1005, 727 F.
Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990),
affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991). Protest
5201-00-100369 must be denied.

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 Harmonized Commodity Description And Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and therefore not
dispositive, the ENs provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise. Customs believes the ENs should always be
consulted. See T.D. 89-80, published in the Federal Register August 23,
1989 (54 FR 35127, 35128).

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:

Other, of a capacity:

7010.90 Exceeding 0.33 liter but not exceeding

1 liter:

7010.90.20 Produced by automatic machine.

7010.90.50 Other containers (with or without their closures).

\* \* \*

> 7013 Glassware of a kind used for table, kitchen,
>
> toilet, office, indoor decoration or similar
>
> purposes (other than that of heading 7010 or
>
> 7018):

Glassware of a kind used for table (other

than drinking glasses) or kitchen purposes

other than that of glass-ceramics:

7013.39 Other:

7013.39.20 Valued not over \$3 each.

> 7013.39.50 Valued over \$3 but not over \$5 each.
>
> 7013.39.60 Valued over \$5 each.

Other glassware:

> 7013.99 Other:

Other:

> Other:
>
> 7013.99.50 Valued over \$0.30 but not over \$3 each.
>
> 7013.99.60 Valued over \$3 but not
>
> over \$5 each.

\* \* \*

> 9405 Lamps and lighting fittings including searchlights
>
> and spotlights and parts thereof, not elsewhere
>
> specified or included; illuminated signs, illumi‑
>
> nated nameplates and the like, having a perma‑
>
> nently fixed light source, and parts thereof not
>
> elsewhere specified or included:
>
> 9405.50 Non‑electrical lamps and lighting fittings:
>
> Other:
>
> 9405.50.40 Other.

An article is to be classified according to its condition as imported.
See *XTC Products, Inc. v. United States*, 771 F.Supp. 401, 405 (1991).
See also, *United States v. Citroen*, 223 U.S. 407 (1911). The articles
at issue are empty glassware of various shapes and sizes. While the use
of the articles is considered in the analysis (see below), the sizes,
characteristics and appearance of the articles are also considered in
determining their classification.

Via facsimile dated June 11, 2002, the protestant presented evidence
that all of the articles sourced from Vetreria Etrusca are annealed
after shaping during the process of manufacture. We note that "all glass
articles must go through an annealing or heat-treatment cycle after
forming and cooling as annealing prevents harmful stresses from freezing
into the glass." See HQ 960274, dated October 9, 1997. Thus, the
annealing process does not influence our classification determinations.

The provision for preserving jars of glass in heading 7010 is an *eo
nomine* provision (*Myers v. United States*, 969 F. Supp. 66, 71-73 (CIT
1997)). The provision in heading 7010 for containers \"of a kind used\"
for the conveyance or packing of goods and the provision in heading 7013
for glassware \"of a kind used\" for table or kitchen purposes are
\"principal use\" provisions (*Group Italglass U.S.C., Inc. v. United
States*, 17 CIT 226 (1993)). As an *eo nomine* provision is more
specific than a use provision, we will consider the former first. Next,
we will consider merchandise which is properly classifiable under
heading 7010 as "of a kind used" as it cannot be classified under
heading 7013, because of the specific parenthetical provision to that
effect in heading 7013 (*Myers*, 969 F. Supp. at 75).

The provision for preserving jars of glass in heading 7010 was
considered in *Myers, supra*. That case concerned jars with wire bail
and rubber ring closure systems. The Court found the jars to be
classifiable under the provision for \"preserving jars of glass\" in
heading 7010. The Court concluded that:

> The three fundamental feature\[s\] which distinguish 'preserving' jars
> from 'packing and conveyance' jars and 'storage' jars are: (1) the
> thickness of the glass in the walls of the jars; (2) the jar's ability
> to form and maintain a hermetic seal; and (3) the jar's potential for
> reuse as a canning or preserving jar. \[969 F. Supp. at 74\]

In this case, item #s 100450, 100460, 100470, each with a wire bail and
trigger, rubber ring closure system, are classifiable in accordance with
*Myers, supra*. That is, the articles meet the 3-part test of *Myers* in
that the glass walls of the jars are relatively thick, the closure
system provides the ability to form and maintain a hermetic seal, and
the jars have potential for reuse as canning or preserving jars. Based
on *Myers* and the criteria therein, we conclude that these articles are
described in the *eo nomine* provision \"preserving jars of glass\" in
heading 7010, HTSUS. Item #s 100450, 100460, 100470, each with a wire
bail and trigger, rubber ring closure system, are classified in
subheading 7010.90.50, HTSUS. This is consistent with Headquarters
Ruling (HQ) 960513 dated August 11, 1997, and HQ 959637 dated December
4, 1997.

EN 70.10 states, in pertinent part that \"\[t\]his heading covers all
glass containers of the kind commonly used commercially for the
conveyance or packing of liquids or of solid products (powders,
granules, etc.). \...\" The key phrase in the quoted material is
\"commonly used commercially for the conveyance or packing\" of liquids
or solid products. The root word of \"commercially\" is commerce, which
is described as the exchange or buying and selling of commodities. The
[Random House Dictionary of the English Language]{.underline} (1973), p.
295, and [Webster\'s New World Dictionary (3rd Coll. Ed.)]{.underline}
(1988), p. 280. The root word of \"conveyance\" is convey which is
described as to carry, bring or take from one place to another;
transport; bear. *Supra*, at p. 320 and p. 305, respectively.

In applying Additional U.S. Rule of Interpretation 1(a), HTSUS, and the
relevant cases below to heading 7010, HTSUS, it is Customs position
that, as a general rule, a glass article's physical form will indicate
its principal use and thus to what class or kind it belongs. However,
should an exception arise so that an article's physical form does not
indicate to what class or kind it belongs or its physical form indicates
it belongs to more than one class or kind, Customs considers the other
enumerated principal use criteria.

With regard to the "Vaso Leonardo", "Vaso Quadro Firenze" and
"Quadrotta", (item #s 100610, 100611, 100613, 100650, 100510, 100515 and
100520), the sizes of the openings and necks vary but each article is
configured to \"hold\" a lid or cap with a traditional threaded closure.
There is no evidence as to whether the ultimate purchaser's primary
expectation would be to discard or recycle the articles after the goods
conveyed or packed in them are destroyed, but the relatively ordinary
appearance (*e.g*., compared to the other articles considered in this
protest) and nature of the articles supports such a conclusion. There is
no evidence whether the environment of sale of the articles features the
goods packed in the articles and not the articles themselves, or whether
the articles are recognized in the trade as used primarily to pack and
convey goods to a consumer who then discards or recycles the articles
after this initial use, but the physical form (see above) indicates that
this is so. Item #s 100610, 100611, 100613, 100650, 100510, 100515 and
100520 are properly classified in heading 7010, HTSUS, and therefore may
not be classified in heading 7013, HTSUS. They are classifiable as
containers of glass of a kind used for the conveyance or packing of
goods in subheading 7010.90.50, HTSUS. This is consistent with HQ 959639
dated October 21, 1997.

Within heading 7013, subheading 7013.39.20 provides for \"\...
\[g\]lassware of a kind used for table (other than drinking glasses) or
kitchen purposes other than that of glass-ceramics: \... \[o\]ther: \...
\[o\]ther: \[v\]alued not over \$3 each\"; subheading 7013.39.50
provides for \"\... \[g\]lassware of a kind used for table (other than
drinking glasses) or kitchen purposes other than that of glass-ceramics:
\... \[o\]ther: \... \[o\]ther: \... \[v\]alued over \$3 each: \...
\[other\] \... \[v\]alued over \$3 but not over \$5 each\"; and
subheading 7013.99.60 provides for \"\... \[g\]lassware of a kind used
for table (other than drinking glasses) or kitchen purposes other than
that of glass-ceramics: \... \[o\]ther: \... \[o\]ther: \... but not
\[v\]alued over \$3 each: \... \[other\] \... \[v\]alued over \$5
each\".

Headings 7013 and 9405, HTSUS, as applicable to the merchandise under
consideration, are controlled by use (other than actual use) (see *Group
Italglass U.S.A., Inc. v. United States*, 17 CIT 1177, 839 F. Supp. 866
(1993); *E.M. Chemicals v. United States*, 923 F. Supp. 202 (CIT 1996);
*Stewart-Warner Corp. v. United States*, 3 Fed. Cir. (T) 20, 25, 748
F.2d 663 (1984)). If an article is classifiable according to the use of
the class or kind of goods to which it belongs, as is true of these
provisions, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides
that:

> In 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 in the United States at the
time of importation determines whether it is classifiable within a
particular class or kind (principal use is distinguished from actual
use; a tariff classification controlled by the latter is satisfied only
if such use is intended at the time of importation, the goods are so
used and proof thereof is furnished within 3 years after the date the
goods are entered (U.S. Additional Note 1(b); 19 C.F.R. §10.131 -
10.139); as stated above, the competing provisions are principal use
provisions, not actual use provisions).

This office has exhaustively reviewed the principal use of articles such
as those under consideration (glassware in various forms contended to be
principally used as candle holders). In the March 25, 1998, edition of
the CUSTOMS BULLETIN, Volume 32, Number 12, page 32, Customs issued a
notice under 19 U.S.C. §1625 proposing to modify or revoke two
Headquarters and five New York ruling letters, to classify the articles
described therein as other glassware of a kind used for indoor
decoration or similar purposes in subheading 7013.99, HTSUS, instead of
as candle holders in subheading 9405.50.40, HTSUS. The comments
submitted in response to this notice provided considerable information
regarding the \"pertinent factors\" (see above) related to the principal
use of the class or kind of goods to which the goods considered in the
proposed rulings belong. Based on this information, Customs has
concluded that the class or kind for goods such as the "Vaso Leonardo"
and similar containers is defined by the form or shape of the article
(*e.g*., bell-shape, similar to bell-shape, flower pot shape, tulip or
flower petal shape, cube or rectangle shape, and possibly other shapes)
and its size. We have found there to be a clear distinction between
glassware used as candle holders and that used for general indoor
decoration based on the size of the articles, in the absence of other
pertinent evidence or information. Glassware of those forms with an
opening of 4 inches or less in diameter and a height or depth of 5
inches or less is used substantially more frequently as a candle holder
than for any other purpose, according to the information we have
obtained, and larger glassware is used substantially more frequently for
general indoor decoration.

The Courts have 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, 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*, 16 CIT 483 (1992), *G. Heileman Brewing Co. v. United States*,
14 CIT 614 (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
(1976).)

Note 1(e) to Chapter 70, HTSUS, provides that the Chapter does not cover
"lamps or light fittings . . . or parts thereof of heading 9405\[.\]"
Thus, if it is determined that the essential character of the articles
is that of a candleholder, the articles cannot be classified under
heading 7013, HTSUS.

The EN to heading 9405, HTSUS, states that lamps and light fittings of
this group can be composed of any material and use any source of light,
including candles. In addition, EN 9405 states that this heading covers
"in particular: (6) \[c\]andelabra, candlesticks, and candle
brackets\[.\]"

We have previously considered the definitions of the terms used in the
heading and EN. In Headquarters Ruling Letter (HQ) 957412, dated August
1, 1995, we stated that:

> \[T\]hese rulings (HQ 954308 dated June 6, 1994, HQ 955935 dated May
> 16, 1994, HQ 953016 dated April 27, 1993, HQ 088742 dated April 22,
> 1991, and HQ 089054 dated August 2, 1991) 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]{.underline}, pg.
> 224 (1st ed. 1984), and as a holder for a candle; candlestick, [The
> Random House Dictionary of the English Language]{.underline}, 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,]{.underline} 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).

Based on the above authorities, Customs issued Treasury Decision (T.D.)
96-7 which, among other things, adopted certain criteria as indicative,
but not conclusive, of whether a particular glass article qualifies as
part of the class \"containers of glass of a kind used for the
conveyance or packing of goods\" in heading 7010, HTSUS, or the class
\"glassware of a kind used for table or kitchen purposes; glass storage
articles\" in heading 7013, HTSUS.

The criteria in T.D. 96-7 for containers of glass of a kind used for the
conveyance or packing of goods in heading 7010, HTSUS, are:

> 1\. \[The container\] generally \[has\] a large opening, a short neck
> (if any) and as a rule, a lip or flange to hold the lid or cap, \[is\]
> made of ordinary glass (colourless or coloured) and \[is\]
> manufactured by machines which automatically feed molten glass into
> moulds where the finished articles are formed by the action of
> compressed air;
>
> 2\. \[T\]he ultimate purchaser's primary expectation is to
> discard/recycle the container after the conveyed or packed goods are
> used;
>
> 3\. \[The container is\] sold from the importer to a
> wholesaler/distributor who then packs the container with goods;
>
> 4\. \[The container is\] sold in an environment of sale that features
> the goods packed in the container and not the jar itself;
>
> 5\. \[The container is\] used to commercially convey foodstuffs,
> beverages, oils, meat extracts, etc.;
>
> 6\. \[The container is\] capable of being used in the hot packing
> process; and
>
> 7\. \[The container is\] recognized in the trade as used primarily to
> pack and convey goods to a consumer who then discards the container
> after this initial use.

Applicability of the foregoing criteria to the merchandise is as
follows. Each of the articles appears to have been manufactured by
automatic machine from ordinary glass. The articles are imported by the
protestant and in turn are sold to wholesalers/distributors who packs
them with foodstuffs, beverages, oils, etc., for commercial conveyance
and sale. There is no evidence whether the articles are capable of being
used in the hot packing process.

Item #s 605077, 605079, 609135, and 609046 meet the criteria delineated
above regarding the differentiation of glass articles for conveyance or
decoration versus candleholders. They are either in the form of flower
pots or squares and are of the dimensions commonly associated with
candleholders. Thus item #s 605077, 605079, 609135, and 609046 will be
classified under heading 9405, HTSUS.

Application of the criteria in T.D. 96-7, supra, to the remaining
articles indicates that they are not of the class or kind principally
used for the conveyance or packing of goods. The sizes of the openings
and necks vary but the articles are not configured to \"hold\" a lid or
cap, other than having a rim with which a cork or similar closure may be
used. There is no evidence as to whether the ultimate purchaser's
primary expectation would be to discard or recycle the articles after
the goods conveyed or packed in them are used or exhausted. However, the
attractive, unique and unusual forms of the articles (the "Puchades" and
"Mielera" Jars (item #s 605023, 605024, 605025, 605028, 605029 and
605030), Giotto bottles (item #s 100532, 100530, 100531), Cuore Collo
Stretto (item \# 100202), Rafaello Quadra (item \# 100550), Mezza Onda
Piu (item \# 1000080), Mezza Onda Meno (item \# 100090), Vaso Giotto
(item \# 100430), Strauss (item \# 100561), Lipari (item \# 100380),
Salina (item \# 100370), Luna (item \# 100170), Pesce Squalo (item \#
100270), Goccia (item \# 100040), Beethoven (item \# 100340), Rossini
(item \# 100350), Cammello (item \# 100290), Quadra Onda (item \#
100100), Palline (item \# 100060), Pesce Luna (item \# 100275),
Michelangelo (item #s 100525, 100526, 100527), Raffaelo (item #s 100540
and 100541), Vienna (item \# 100570), Pesce (item \# 100280), Onda Alta
(item #s 100581, 100400), Cavallucio Marino (item \# 100260), and Toledo
(item \# 100600)) supports the conclusion that the articles would be
retained for decorative or storage purposes. Their varied sizes and
capacities support the same conclusion for each of those articles, as
does the fact that the top closures for all of these articles are cork
or similar closures allowing for repetitive, extremely easy opening and
closing. In the case of the cylindrically shaped articles (Quadrotta,
(item \# 100520), Quadrotta (item #s 100510 and 100515)), although the
articles are somewhat similar to wine bottles (see HQ 961409 dated
October 22, 1998), they have unusually long necks and an attractive,
unusual form, supporting the same conclusion. Similarly, although there
is no evidence whether the environment of sale of the articles features
the goods packed in the articles and not the articles themselves, or
whether the articles are recognized in the trade as used primarily to
pack and convey goods to a consumer who then discards or recycles the
articles after this initial use, the foregoing factors support the
conclusion that the articles are emphasized in the environment of sale
and that the articles are retained after use for decorative or storage
purposes. These articles are classified as other glassware of a kind
used for table (other than drinking glasses) or kitchen purposes under
subheadings 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, depending on
value. This is consistent with HQ 959637 dated December 4, 1997, and HQ
961353 dated October 20, 1998.

No description or illustration was provided for some of the articles:
item #s VE 85000242 (TO 48 Oro Rosso 48mm), 85000156 (TO 53 Oro RTS
53mm), 85000171(TO 58 Oro RTS 58mm), 85000139 (TO 63 Oro RTS 63mm),
85000121(TO 70 ABA RTS 70mm), item #s VE 85000125 (TS Granada/et cal),
85000056 (Tappo Sugh A 24 x 14), 85000095 (TS Quadrotta 100/250),
85000055 (Tappo Sug B 26 X16); SG 933, Melon Jar 1.7 liter with cork
lid; SG 928 Melon Jar 3.7 liter with cork lid, SG 929 Melon Jar 7 liter
with glass lid; SG 930 Melon Jar 16 liter with glass ball top; SG 901
Orcio Hermetic Jar with hinged glass; SG 702LE 12" Square pasta with
cork lid; SG 6701 Chairman Jar .85 liter;

SG 6702 Chairman Jar .4 liter with cork lid; SG 9801 Fruit Basket Shaped
Jar;

SG GS-23 Quadra Etung; SG 3501-4 Square Jar .85 liter with cork lid; SG
933. The law governing protests requires a protest to set forth
\"distinctly and specifically \... each category of merchandise
\...\[,\] \... the nature of each objection and the reasons therefor
\... and \... any other matter required by the Secretary \[of the
Treasury\] by regulation\" (19 U.S.C. §1514(c)(1)(B) through (D)). The
Customs Regulations issued under this law require \"\[a\] specific
description of the merchandise \...\" and that \"\[t\]he nature of, and
justification for the objection \[be\] set forth distinctly and
specifically with respect to each category, payment, claim, decision, or
refusal\" (19 C.F.R. §174.13(a)(5) and (6)). In the absence of a
description or illustration of these articles, the protest must be
denied in regard to them and they are classified as liquidated, as other
glassware of a kind used for table (other than drinking glasses) or
kitchen purposes in subheading 7013.39.20, 7013.39.50, or 7013.39.60,
HTSUS, or 7013.99.50, HTSUS, as other decorative glass articles,
depending on value.

We are not persuaded by the protestant's reliance upon the holding in
*Will & Baumer Candle Co., Inc. v. United States*, 21 Cust. Ct. 149 (1st
Div. 1948). In that case, the Court considered whether 3 horizontal
lines on a religious candle constituted decoration or ornamentation. The
articles at issue (including those deemed to be classifiable as
candleholders) are readily distinguishable from the articles considered
by the Court in *Will & Baumer*; they consist of decorative bottles and
kitchen ware, as well as glass for the conveyance of goods.

**HOLDINGS:**

\(1\) Item #s 100450, 100460, 100470, each with a wire bail and trigger,
rubber ring closure system, are classified as preserving jars of glass,
other containers (with or without their closures), under subheading
7010.90.50, HTSUS.

\(2\) Item #s 100610, 100611, 100613, 100650, 100510, 100515 and 100520
are classified as containers of glass of a kind used for the conveyance
or packing of goods, other containers (with or without their closures),
under subheading 7010.90.50, HTSUS.

\(3\) Item #s 605077, 605079, 609135, and 609046 will be classified as
candleholders under subheading 9405.50.40, HTSUS, as non-electric lamps
and lighting fittings, other, other.

\(4\) The remaining articles are classified as other glassware of a kind
used for table (other than drinking glasses) or kitchen purposes under
subheading 7013.39.20, 7013.39.50, 7013.39.60, or 7013.99.50, HTSUS,
depending on value.

The protest should be **GRANTED IN PART** (as to Item #s 100450, 100460,
100470, 100610, 100611, 100613, 100650, 100510, 100515 and 100520,
605077, 605079, 609135, and 609046), and **DENIED IN PART** (as to the
remaining articles). Protest 5201-00-100369 must be **DENIED** (see
above).

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than sixty (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 (60) days from the date of the decision, the Office of Regulations
and Rulings will make the decision available to Customs personnel, and
to the public on the Customs Home Page on the World Wide Web at
*www.customs.treas.gov*, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director,

> Commercial Rulings Division

[^1]: The Customs Form ("CF") 19 completed by the surety bears a
    hand-written protest number 5201-00-100573. Via email dated May 24,
    2002, Customs Miami confirmed the protest number to be
    5201-00-100369.