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HQ 956810




November 28, 1994

CLA-2 CO:R:C:M 956810 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.90

Peter J. Fitch, Esq.
Fitch, King and Caffentizis
116 John Street
New York, New York 10038

RE: Wrought iron pedestals with glass vessels; NY 875420 modified; 9405.50.40; EN 94.05; candle holder; HRL 953016; HRL 088742; HRL 089054; HRL 956048; class or kind; GRI 3(b); essential character; General EN Rule 3(b); composite good; glass vs. metal; EN 70.13; HRL 951789; whole character of glass articles; HRL 953384; 7323.99.90; EN 73.23; 9403; furniture; General EN (A) to Chapter 94; Sprouse Reitz & Co.; Furniture Import Corp.; 8306.29.00; statuettes and other ornaments, of base metal; EN 83.06

Dear Mr. Fitch:

This is in reference to New York (NY) 875420 issued to Caballero Brokers, Inc., on July 2, 1992, by the Area Director of Customs, New York Seaport, on behalf of your client, Tucan International, which concerned the tariff classification of several articles under the Harmonized Tariff Schedule of the United States (HTSUS).

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of NY 875420 was published on October 19, 1994, in the Customs Bulletin, Volume 28, Number 42. Comments submitted in response to the proposed modification in your letter dated November 14, 1994, were taken into consideration in rendering this decision.

FACTS:

In a letter of June 15, 1992, Caballero Brokers, Inc., described the three different sized wrought iron pedestals with glass vessels as follows:

FLOOR STANDING VASE (DECORATIVE). THIS VASE-STAND IS CONSTRUCTED OF WROUGHT IRON AND HAS A HAND BLOWN GLASS INSERT WITH A CONCAVE BOTTOM WHICH WILL NOT ALLOW IT TO STAND BY ITSELF EITHER ON THE FLOOR OR TABLE. THIS GLASS CONCAVE VASE WILL BE PACKAGED SEPARATELY AND SOLD AS A COMPLIMENT (SET) OF THE WROUGHT IRON STAND. THE VALUE OF THIS ITEM IS APPROXIMATELY $18.00 - $13. STAND $5. GLASS. WEIGHT OF THIS ITEM IS APPROXIMATELY 28% (LARGE), 33% (MEDIUM), 42% (SMALL) GLASS AND THE REMAINDER OF IRON RESPECTIVELY.

Based on this information, in NY 875420, the Area Director of Customs, New York Seaport, classified the wrought iron pedestals with glass vessels under subheading 8306.29.00, HTSUS, which provides for "Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof...Statuettes and other ornaments and parts thereof...Other."

You state that the article which was the subject of NY 875420 was Article I-840 R, which is now described and sold as "Sm. Floor Candle w/insert". However, we note that NY 875420 described and classified three different sized wrought iron pedestals with glass vessels. A current brochure and price list were submitted with your November 14, 1994, letter depicting the three different sized articles at issue. These articles are described as "Lg. Floor Candle w/insert", "Md. Floor Candle w/insert", and "Sm. Floor Candle w/insert." The prices vary from $35.00 to $60.00, depending on size and quantity ordered.

At the time that the initial ruling request was submitted, you state that the final use of the articles had not been determined. You state that considering the merchandising and use of the articles, they cannot be fairly described as decorative vases. You contend that the articles at issue are sold and used as illuminating candle holders. Therefore, if the classification in NY 875420 is to be modified, the wrought iron pedestals with glass vessels should be classified under subheading 9405.50.40, HTSUS, as other non-electrical lamps.

The headings to be considered are as follows:

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

7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel....

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof....

9403 Other furniture and parts thereof....

9405 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....

ISSUE:

What is the tariff classification of the wrought iron pedestals with glass vessels under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

You contend that the wrought iron pedestals with glass vessels are classifiable under subheading 9405.50.40, HTSUS, as non-electrical lamps and lighting fittings. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 94.05 (pg. 1581), 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 94.05(I)(6) states that this heading covers "...in particular candelabra, candlesticks, and candle brackets."

We have previously held that empty glass candle holders are classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings. See, HRL 953016 dated April 27, 1993, HRL 088742 dated April 22, 1991, and HRL 089054 dated August 2, 1991, which classified glass candle holders as non-electrical lamps and light fittings under subheading 9405.50.40, HTSUS, pursuant to EN 94.05.

You state that the articles are advertised and used as illuminating candle holders and, therefore, should be classified under subheading 9405.50.40, HTSUS. However, other information before this office indicates that the class of wrought iron pedestals with glass vessels is not limited to candle holders. Headquarters Ruling Letter (HRL) 956048 dated July 7, 1994, classified similar articles, iron pedestals with glass vessels, under subheading 7013.99.90, HTSUS, as other glassware, valued over $5 each. HRL 956048 determined that the articles were composite goods with the essential character imparted by the glass vessels.

In HRL 956048 the importer marketed the articles as "spirit lamps and votive candle burners, as the basic design is derived from similar articles used in the late 16th and 17th century by monasteries and churches for illumination." However, the importer also stated that this article is a "household decorative accessory whose use is limited solely by the imagination of the user." We determined that classification under subheading 9405.50.40, HTSUS, was inappropriate because the metal iron pedestal with glass vessel did not belong to the class or kind of lamps and lighting fittings classifiable under subheading 9405.50.40, HTSUS. Even though it was marketed as a spirit lamp and votive candle burner with its basic design derived from similar articles used in the late 16th and 17th century by monasteries and churches for illumination, the importer stated that they could be used for any purpose that the buyer desires. Therefore, we determined that it was a decorative article which was not classifiable as a lamp or lighting fitting under subheading 9405.50.40, HTSUS.

Based on the information before Customs, we find that the wrought iron pedestals with glass vessels are still not of the class or kind of lamps and lighting fittings classifiable under subheading 9405.50.40, HTSUS. Like HRL 956048, we note that the articles at issue are marketed as "Sm., Md., and Lg. Floor Candle w/insert". Additionally, as you stated, we have no definitive information that the articles are used as decorative articles nor do we have definitive information that the articles are used as candle holders. We do have varying information which indicates that the articles are not solely candle holders, but decorative articles. The importer stated that this article is a "household decorative accessory whose use is limited solely by the imagination of the user." Therefore, we are of the opinion that the articles at issue are not of the class or kind of lamps and lighting fittings, but are decorative articles which may, in some cases hold a candle, but can also hold flowers, plants, a wine bottle, glass beads, etc.

The article in this case is composed of an wrought iron pedestal and a glass vessel. When, by application of GRI 2, HTSUS, goods are prima facie classifiable under two or more headings, GRI 3, HTSUS, is applicable. In this case, classification is determined by application of GRI 3(b), HTSUS, which provides:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN Rule 3(b)(IX) (pgs. 3-5), states that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts (emphasis in original).

In this case, we are of the opinion that the wrought iron pedestal with glass vessel is not a set, but is a composite good. The components of the article, the wrought iron pedestal and glass vessel, are adapted one to the other, mutually complementary, and together form a whole which would not normally be offered for sale in separate parts. Therefore, we need to determine which component imparts the essential character.

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, EN Rule 3(b) (pg. 4), provides further factors which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.

Based on the information submitted, we are of the opinion that the essential character of the wrought iron pedestal with glass vessel is the glass vessel. The glass vessel is the component which distinguishes the article. We note that the glass vessel cannot stand on its own; the pedestal supports the glass vessel. However, we are of the opinion that the glass is the component which fulfills the function of the article; it holds the object or objects to be displayed such as, flowers, plants, wine bottles, candles, etc. Therefore, the glass vessel imparts the essential character to the wrought iron pedestal with glass vessel. See, HRL 956048.

You contend that the wrought iron pedestal imparts the essential character of the article. As support, you cite HRL 951789 dated August 5, 1992, which held that the essential character of a "Tiffany lamp" was the metal base and not the "Tiffany" lamp shade. HRL 951789 determined that the structure of the metal lamp base was the component which allowed the article to function as a lamp. HRL 951789 determined that:

The metal components comprise the base and neck of the table lamps which support the lamp socket and the electrical circuitry as well as support the 'tiffany look' glass shade. Without the metal base and neck to hold the lamp sockets and electric circuitry in place, the table lamps would not be able to function as a lamp.

We believe that HRL 951789 is factually distinguishable from the instant case. Although the pedestal supports the glass, it is not comparable to the metal components in HRL 951789. The metal components in HRL 951789 actual held the lamp. The lamp could function without the "Tiffany" shade, but it could not function without the metal components. In this case, although the pedestal supports the glass vessel, it is the glass component which performs the holding function of the articles placed therein. The pedestal cannot perform the holding function of the articles on its own. Therefore, we do not find the rational in HRL 951789 compelling for the classification of the subject articles.

The glass vessel is classified under heading 7013, HTSUS, which provides for "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...." EN 70.13 (pgs. 936-a), states that heading 7013, HTSUS, covers:

Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit etc.) table centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views (emphasis in original).

The glass vessel is ornamental glassware similar to a vase, although as stated, it cannot stand by itself. Even though the glass vessel can be used for both indoor and outside decoration, it is of the class or kind of article classifiable under heading 7013, HTSUS. Inasmuch as the essential character is imparted by the glass vessel, the entire composite good (wrought iron pedestal with glass vessel) is, therefore, classified under the tariff classification of the glass vessel. As the value of the wrought iron pedestal with glass vessel is over $5 each, it is classified under subheading 7013.99.90, HTSUS, as other glassware, valued over $5 each. See, HRL 956048.

You contend that when classifying a multi-material article under heading 7013, HTSUS, the glass portion of the article must not only provide the essential character of the article, but must also give the entire article the character of glass articles. You cite to EN 70.13 which provides:

Articles of glass combined with other materials (base metal, wood, etc.) are classified in this heading only if the glass gives the whole the character of glass articles (emphasis in original).

Therefore, you contend that in addition to the usual standards for determining essential character, this note adds the requirement that in the case of glass commingled with other materials, such articles will be classifiable as glass only if the glass give the entire article the character of glass.

The above-reference test from EN 70.13 deals with classification of a glass article pursuant to GRI 1, HTSUS. In this case, classification is based on GRI 3(b), HTSUS, as a composite good. When classifying a composite good pursuant to GRI 3(b), HTSUS, states that:

...composite goods consisting of different materials or made up of different components...shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

GRI 3(b), HTSUS, states that we must determine the essential character of a composite good and then classify the entire article pursuant to the classification of the component which imparts the essential character. In effect, GRI 3(b), HTSUS, directs us to ignore the remaining components and their impact on the article. Therefore, reliance on the above-reference language in EN 70.13 is inappropriate in this case.

Additionally, you contend that if we hold that these articles are not classified as candle holders under subheading 9405.50.40, HTSUS, we should follow the rational in HRL 953384 dated September 14, 1994. HRL 953384 dealt with the classification of glasses for half-yard-of-ale and foot-of-ale stands. We determined that the glasses were considered parts of the ale stands and were, therefore, classified under subheading 7020.00.00, HTSUS, as other articles of glass. HRL 953384 determined that the glasses could not be classified under heading 7013, HTSUS, as parts of drinking glass because that tariff provision does not provide for parts. It is well established that where there is no provision for parts of articles under a tariff provision, imported merchandise held to be parts will not be subject to classification thereunder.

We do not find HRL 953384 to be dispositive in this case. The merchandise at hand is the entire wrought iron pedestal with glass vessel, not merely the glass vessel. If merely the glass vessel was imported, consideration of HRL 953384 would be necessary. We do not believe that HRL 953384 has any bearing on this case, nor do we believe that our finding in this case will have any ramifications on the holding in HRL 943384.

Additionally, since in your opinion classification under heading 7013, HTSUS, is inappropriate, you suggest classification under subheading 7323.99.90, HTSUS, as other household articles, of iron or steel. EN 73.26 (pgs. 1035-1036) states that:

This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels restaurants, boarding-houses, hospitals, canteens, barracks, etc.

These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials provided that they retain the character of iron or steel articles (emphasis in original).

The classification of the wrought iron pedestals with glass vessels could be possible under this provision pursuant to GRI 1, HTSUS. EN 73.23 states that the iron or steel article may contain other parts, if the other parts do not cause the whole article to lose its character of iron or steel. We are of the opinion that the wrought iron pedestals with glass vessels do not retain the character of iron or steel because they contain a glass component. The addition of the glass component causes the article to lose its character of iron or steel. Therefore, the wrought iron pedestals with glass vessels are not classifiable under subheading 7323.99.90, HTSUS, pursuant to GRI 1, HTSUS.

Consideration was also given as to whether the wrought iron pedestal with glass vessel may be classifiable under heading 9403, HTSUS, which provides for "Other furniture and parts thereof...." General EN (A) to Chapter 94 (pg. 1574), defines furniture as:

Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices....Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category (emphasis in original).

The wrought iron pedestal with glass vessel is a movable article which is constructed for placing on the floor or ground. However, we are of the opinion that the article is not mainly used for a utilitarian purpose. In determining whether certain articles are classifiable as furniture, there is a clear distinction between an article of utility and those used primarily for ornamentation. See, Sprouse Reitz & Co., v. United States, 67 Cust. Ct. 209, C.D. 4276 (1971), and Furniture Import Corp., v. United States, 56 Cust. Ct. 125, C.D. 2619 (1966).

The wrought iron pedestal with glass vessel is a subsidiary article designed for ornamentation. It is not an article designed for a utilitarian purpose. Moreover, this article has been described as "DECORATIVE" and we are of the opinion that it is a decorative article. Therefore, the wrought iron pedestal with glass vessel is not classified as furniture under heading 9403, HTSUS.

NY 875420 classified the wrought iron pedestal with glass vessel under subheading 8306.29.00, HTSUS, as other statuettes and other ornaments, of base metal. EN 83.06 (pg. 1122), states that statuettes and other ornaments:

...comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, churches, gardens (emphasis in original).

The wrought iron pedestal has a glass vessel, which, as stated previously, in our opinion is not a subsidiary non-metallic part. Therefore, the wrought iron pedestal with glass vessel is not classifiable under subheading 8306.29.00, HTSUS, pursuant to GRI 1, HTSUS.

HOLDING:

The wrought iron pedestals with glass vessels are composite goods with the essential character imparted by the glass vessels.

Therefore, they are classified under subheading 7013.99.90, HTSUS, as other glassware, valued over $5 each.

NY 875420 is modified as directed above. In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division

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