HQ 957794 - NYRLs 805879 and 805816 revoked; glass candle holders, decorative glassware; principal use; Additional U.S. Rule of Interpretation 1(a); HRLs 957127, 953016, 088742, 950245, 950426, 089054; non-electrical lamps and lighting fittings; EN 94.05; candlesticks - United States International Trade Commision Rulings

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HQ 957794

October 2, 1995

CLA-2 R:C:M 957794 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

Mr. Daniel T. Petrosini
Alpha International
40 Parker Road, Suite 201
Elizabeth, NJ 07207

RE: NYRLs 805879 and 805816 revoked; glass candle holders, decorative glassware; principal use; Additional U.S. Rule of Interpretation 1(a); HRLs 957127, 953016, 088742, 950245, 950426, 089054; non-electrical lamps and lighting fittings; EN 94.05; candlesticks

Dear Mr. Petrosini:

This is in reference to your letters of March 30 and 31, 1995, on behalf of Park B. Smith, Ltd., requesting reconsideration of New York Ruling Letters (NYRL) 805879 dated January 23, 1995, and 805816 dated January 31, 1995, in which you were advised of the classification of styles "trilogy" and "tulip" glass and iron articles under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and pictures of each were provided.

In both NYRL 805879 and 805816, you were advised that the subject decorative articles were classified under subheading 7013.99.50, 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)...other glassware... other... other... valued over $0.30 but not over $3 each. You believe that they could be considered candle holders, classifiable under subheading 9405.50.40, HTSUS, as non-electric lamps and lighting fittings.

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), notice of the proposed revocation of NYRL 805879 and 805816 was published, in the August 23,1995, Customs Bulletin, Volume 29, Number 34.

FACTS:

Both articles are glass vessels with iron pedestals. The glass vessel portions are made of recycled glass. Color is added to the furnace during firing to create a variety of colors in the glass. The iron portion is handcrafted into various shaped frames to act as a pedestal for the glass vessel. You also suggest that the metal portion can support a candle without the presence of the glass vessel. Submitted marketing literature describes both styles as "Environments decorative lighting". Retail advertising of the articles describe them as "decorative candle holders", "votive candle holders", "iron lighting sets" and "candle holders". The "trilogy" style is a combination of a glass vessel and wrought iron stand. It is imported in 3 sizes; small (5"high), medium (6" high) and large (7"high). The glass portion of the 5" high "trilogy" sample presented has an interior depth of approximately 3" and an interior diameter of approximately 1«".

The "tulip" style is a combination of a frosted colored glass vessel in the shape of a blooming tulip and a green painted iron pedestal. The pedestal has a holder fashioned for the vessel and is connected to a base by an iron rod. The iron rod is shaped to appear to be a flower stem and has protruding leaf shaped iron pieces. The "tulip" style comes in three sizes; small (7"high), medium (12"high) and large (16"high). The glass portion of the "tulip" sample presented has an interior depth of approximately 2«" and an interior diameter of approximately 2".

ISSUE:

Are styles "trilogy" and "tulip" glass and iron articles classifiable as candle holders 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 the 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. The subheadings under consideration are as follows:

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.

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 of both styles, as well as their environment of sale, the expectations of the ultimate purchaser and the manner in which they are used, indicates that they 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, in the case of the "tulip" style their frosted nature, are all physical characteristics consistent with a candle holder's purpose. Frosted glass will defuse the light from a flame, creating light which appears to have a "softer glow". Furthermore, submitted catalogs and advertisements indicate that these articles 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 Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, or legally binding, 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 957127 dated May 16, 1995, 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 subject articles are, in fact, candlesticks as the term is used in the ENs. They are principally used in the United States as support for a candle. Therefore, the articles are properly classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings. For the reasons set forth in this ruling, NYRLs 805879 and 805816 are revoked.

HOLDING:

The candle holders are classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and lighting fittings, which is currently subject to the Column 1 duty rate of 7.3 percent ad valorem.

NYRLs 805879 dated January 23, 1995, and 805816 dated January 31, 1995, are revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) 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
Tariff Classification Appeals Division

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