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HQ 957654



February 27, 1996

CLA-2 RR:TC:MM 957654 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.00; 9405.50.40

Port Director
U.S. Customs
6 World Trade Center
New York, NY 10048

RE: Protest 1001-94-104978; Decorative crystal candle holders; EN 94.05; HRL 956347, 953016, 088742 and 089054; Kraft, Inc, v. U. S., G. Heilman Brewing Co. v. U. S., and U. S. v. Carborundum Company, Hasbro Industries, Inc. v. U. S., C.J. Tower & Sons of Buffalo, Inc. v. U.S.

Dear Port Director:

The following is our decision regarding Protest 1001-94-104978 concerning your action in classifying and assessing duty on various 4" and 5" diameter global shaped decorative crystal candle holders under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and a catalog of protestant's products were submitted for our examination. In preparing this ruling, consideration was given to supplemental submissions made by counsel on behalf of the protestant dated August 10, 1995, as well as arguments presented at a meeting at Customs Headquarters.

FACTS:

The articles are globe-shaped crystal candle holders (glass candle holders) with 4"and 5" diameter openings. A decorative pattern is cut in the glass to enhance the patterns created by the flickering candle. The samples style numbers and descriptions are as follows:

413838-12 "Pinwheel Votive" 5" D 413836-12 not identified in catalog
413123-12 "Essex Votive" 5" D 413126-12 "Nichole Votive" 5"D
413841-12 "Cardiff Votive" 5" D 413884-12 "Radiance Votive" 5"D
402807P-12 "Reflections Votive" 5" D

The glass candle holders may be imported in other smaller diameters, and with different decorative patterns. The glass candle holders do not appear to be of the type used for devotional purposes.

Protestant indicates that the glass candle holders may be imported either packaged in a gift box without a candle, in plain cardboard boxes, or with a candle. After importation, some of the glass candle holders will be repackaged into a gift box with a brass stand and a candle. A sample gift box with a representative photograph of the candle holder, candle and brass stand was submitted.

The articles were entered on April 22, and May 6, 13, and 20, 1994. Entries were liquidated under subheading 7013.99.50, HTSUS. The protest was timely filed on July 14, 1994. Protestant contends that the articles are classified as candle holders under subheading 9405.50.40, HTSUS. The subheadings under consideration are as follows:

3406.00.00 Candles, tapers and the like.

7013.99.50 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...Other glassware ...Other...Other...Valued over $0.30 but not over $3 each.

9405.50.40 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...Other... Other.

ISSUE:

Are the various globe shaped candle holders with and without candles packaged in a gift box or plain cardboard box classified as non-electrical lamps and lighting fittings under subheading 9405.50.40, 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...."
GRI 6 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.

Subheading 7013.99.50, HTSUS, is 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. Because subheading 7013.99.50, HTSUS, contains the language "of the kind" and "used for", classification of goods under them are determined by the use of the class or kind of article to which the imported merchandise belongs.

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: 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 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 particular merchandise falls within a 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.

As a general rule, a glass article's physical form will indicate its principal use and thus to what class or kind it belongs. Should, however, an exception arise and 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. Customs is of the opinion that the physical characteristics as well as their environment of sale, the expectations of the ultimate purchaser and the manner in which they are used, indicates that the subject articles are candle holders for tariff purposes.

We are of the opinion that the subject articles, while having a decorative nature, are not principally dedicated to the use of the class or kind of merchandise contemplated by subheading 7013.99.50, HTSUS. The relatively small size of each glass vessel together with its interior depth and diameter, and its decorative pattern cut in the glass to enhance the patterns created by the flickering candle, are all physical characteristics consistent with a candle holder's purpose. Furthermore, the submitted catalog indicates that these articles with diameter openings of 5" and smaller, are dedicated to a sole use as a candle holder.

Subheading 9405.50.40, HTSUS, provides for non-electrical lamps and lighting fittings. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. 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 these headings. See, T.D. 89-90, 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 are of the opinion 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. United States, 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

We have previously held that empty glass candle holders are classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and lamp fittings. See, HRL 956347 dated August 30, 1994, 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.

Based on the above definitions and rulings, we find that the glass candle holders without candles are, in fact, candlesticks as the term is used in the ENs. The articles at issue are a utensil used for supporting a candle. Therefore, the glass candle holders are properly classified under subheading 9405.50.40, HTSUS, as non- electrical lamps and light fittings.

The glass candle holder with accompanying candles are classified under two different tariff provisions. The glass candle holder is classified under heading 9405, HTSUS, and the candle is classified under heading 3406, HTSUS. 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.

To determine what is a "set put up for retail sale", EN Rule 3(b)(X) (pg. 4), provides a three-part test for "goods put up in sets for retail sale":

For the purposes of this Rule, the term 'goods put up in sets for retail sale' shall be taken to mean goods which:

(a) consist of at least two different articles which are prima facie, classifiable in different headings....;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repackaging (e.g., in boxes or cases or on boards).

As stated previously, the candle holder and candle are classified under different headings. When combined the components are put up together to meet a particular need or carry out a specific activity; to provide decorative illumination. However, based on the submitted information, it is unclear as to how the candle holder and candle will be packaged. If the articles are packaged together for sale directly to the consumer in either the gift box or plain cardboard box without repackaging with the brass stand, they meet the qualifications of a set. However, if the candle holder and candle will be repackaged in the U.S. with the brass stand, they do not meet the qualifications of a set. Therefore, the candle holder and candle which will not be repackaged with the brass stand are a set for tariff purposes. To determine the proper classification, the essential character of the set needs to be determined.

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.

We are of the opinion that the essential character of the set is imparted by the glass candle holder. The glass candle holder is the central piece and the focus of the set. It is the component which attracts the consumer and is, actually, the component which the consumer is purchasing. The candle when burned will eventually disappear and the consumer will purchase a replacement. Therefore, the glass candle holder and candle set is classified under subheading 9405.50.40, HTSUS.

Classification of the candle holder and candle which is not a set is different from the above set classification. The candle holder and candle must be classified separately under their respective headings. EN 94.05, states that heading 9405, HTSUS, does not include candles of heading 3406, HTSUS. Therefore, the candle holder will be classified under subheading 9405.50.40, HTSUS, and the candle will be classified under subheading 3406.00.00, HTSUS, which provides for "Candles, tapers and the like."

We note that GRI 5(b), states that "[i]n addition to the foregoing provision, the following rules shall apply in respect of the goods referred to therein:...

Subject to the provision of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.

Based upon an examination of the submitted gift box sample and a description of the plain cardboard box, we are of the opinion that the boxes are packing materials which are to be classified with the entered goods. The boxes are of the type in which a consumer normally finds glass articles packaged and are clearly not designed for repetitive use. Therefore, the boxes are classified with the glass candle holders under subheading 9405.50.40, HTSUS.

HOLDING:

The protest should be GRANTED. The glass candle holders imported without candles packaged in gift or plain cardboard boxes, and the glass candle holder and candle sets are classified under subheading 9405.50.40, HTSUS, as non- electrical lamps and lighting fittings, with a column one duty rate of 7% ad valorem. The glass candle holders and candles which do not qualify as sets are classified separately under subheading 9405.50.40, HTSUS, as non-electrical lamps and lighting fittings, and under subheading 3406.00.00, HTSUS, as candles, with a column one duty rate of 3.5% ad valorem.

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, with the Customs Form 19, 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 of 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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