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