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HQ 957932



September 29, 1995

CLA-2 R:C:M: 957932 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.30

Area Director
U.S. Customs Service c/o Protest and Control Section
6 World Trade Center Room 761
New York, New York 10048

RE: Protest 1001-94-106789; Glassware, Smoker's articles, Glass ashtrays; 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, Group Italglass U.S.A. v. U.S.

Dear Area Director:

The following is our decision regarding Protest 1001-94-106789 concerning your action in classifying and assessing duty on certain glassware under the Harmonized Tariff Schedule of the United States (HTSUS). Samples, as well as pictures of the subject article, were provided.

FACTS:

The subject article (item no. SK-1540) is a round crystal pressed glassware with a diameter slightly less than 5 ¾" and a height of slightly less than 1 ¾". The sides and bottom are deeply and fully faceted. The top rim contains 4 shallow indentations which are camouflaged by the faceted work of the sides. Protestant states that the physical features of the glassware indicate it is designed to be used as an astray; the indentations on the article's top rim are slanted toward the center of the article to function as a resting place and ash disposal for cigarettes, cigars and pipes.

The subject article was imported without packaging for retail sale. Protestant has submitted several letters from retailers indicating that after importation the articles are stacked on shelves and sold without packaging. Protestant further states that the articles are described on the manufacturer's invoice as an ashtray and marketed and sold as such.

The subject articles were entered under subheading 7013.99.30, HTSUS, which provides for glass smoker's articles. Upon liquidation on July 15, August 12, and September 2 and 9, 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 October 4, 1994.

The subheadings under consideration are:

7013 [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)

7013.39.20 glassware 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.............29.2%

7013.99.30 glassware 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...................................................................9%

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 U.S. 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.

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 the subject glassware belongs to the class "smoker's articles". Though somewhat shallow, the ashtray's top rim has 4 indentations designed as spaces to rest a cigarette. This physical characteristic identifies the piece as a smoker's article. Additionally, the article 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 its classification as a smoker's article. Submitted pictures together with several letters from retailers indicate that the article is marketed 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 glass ashtrays are classifiable under subheading 7013.99.30, HTSUS. Their corresponding column one duty rate is 9% ad valorem.

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

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