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HQ 957412

August 1, 1995

CLA-2 R:C:M 957412 MMC


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.


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.


Are the articles classifiable as drinking glasses under heading 7013, HTSUS, or as glass candle holders under heading 9405, HTSUS?


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.


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.


John Durant, Director
Commercial Rulings Division

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