HQ 960475 - Protest 2304-95-100241; flower pot shaped glassware; candle holder; glassware for table, kitchen, toilet, office, indoor decoration; principal use; U.S. Additional Note 1(a); United States v. Carborundum Co., 63 CCPA 98 (1976); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20 (1984); Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (1996); Lenox Collections v. United States, 19 CIT 345 (1995); G. Heileman Brewing Co. v. United States, 14 CIT 614 (1990); HQ 957127; NY 894791 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1998 HQ Rulings > HQ 960380 - HQ 960511 > HQ 960475

Previous Ruling Next Ruling
HQ 960475

June 30, 1998

CLA-2 RR:CR:GC 960475 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50; 9405.50.40

Port Director
U.S. Customs Service
Post Office Box 3130
Laredo, Texas 78044

RE: Protest 2304-95-100241; flower pot shaped glassware; candle holder; glassware for table, kitchen, toilet, office, indoor decoration; principal use; U.S. Additional Note 1(a); United States v. Carborundum Co., 63 CCPA 98 (1976); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20 (1984); Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (1996); Lenox Collections v. United States, 19 CIT 345 (1995); G. Heileman Brewing Co. v. United States, 14 CIT 614 (1990); HQ 957127; NY 894791

Dear Port Director:

This is our decision on protest 2304-95-100241, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a "Maceta Mediana" (medium flower pot). A sample was provided. In preparing this decision, consideration was also given to a supplemental submission dated May 27, 1997, from counsel for the protestant.

FACTS:

The invoice description of the merchandise is "MACETA MEDIANA" (medium flower pot). The protestant describes the merchandise as "medium sized glass candle holders in the shape of flower pots ... measur[ing] 5 1/2" high and ... across the top ... made of fairly thick glass ... and ... not hav[ing] holes or any means of drainage." The sample meets this description. The inside of the base is concave in shape (so that the middle of the inside is raised). The importer states that it sells the merchandise as candle holders and that its customers also sell them as candle holders. The importer has provided packaging of two different kinds of "candle rack[s]", in which items such as the merchandise under consideration are displayed with "votive" style candles (or a pillar candle, in one case) burning in them.

The merchandise was entered on October 21 and 31, 1994, with classification claimed by the importer in subheading 9405.50.4000, HTSUS. The entries were liquidated on September 29, 1995, with classification in subheading 7013.99.5000, HTSUS.

The importer's counsel filed this protest with Customs on December 27, 1995, against the classification of the merchandise. Stating that a smaller version of the article was held to be classifiable under subheading 9405.50.4000, HTSUS, in New York Ruling (NY) 894791 dated March 15, 1994, and citing Headquarters Ruling (HQ) 957127 dated May 16, 1995, the protestant contends that the medium flower pots in the protested entries should be similarly classified. The protestant argues that "... these articles (in all three sizes) are designed, sold, and, to the importer's knowledge, principally used as candle holders" and should be classified accordingly.

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: ... Other: ... Valued over $0.30 but not over $3 each.

The 1994 general column one rate of duty for goods classifiable under this provision is 30% ad valorem.

9405.50.40 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included ...: ... Non-electrical lamps and lighting fittings: ... Other: ... Other.

The 1994 general column one rate of duty for goods classifiable under this provision is 7.6% ad valorem.

ISSUE:

Whether the medium flower pots of glass are classifiable as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes in subheading 7013.99.50, HTSUS, or other non-electrical lamps and lighting fittings in subheading 9405.50.40, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Subheadings 7013.99.50 and 9405.50.40, HTSUS, as applicable to the merchandise under consideration, are controlled by use (other than actual use) (see Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT 1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20, 25, 748 F.2d 663 (1984)). In such provisions, articles are classifiable according to the use of the class or kind of goods to which the articles belong. 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:

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 in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139)).

The Courts have 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, 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 Lenox Collections v. United States, 19 CIT 345, 347 (1995); Kraft, Inc, v. United States, 16 CIT 483 (1992), G. Heileman Brewing Co. v. United States, 14 CIT 614 (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 (1976).

This office recently has exhaustively reviewed the principal use of articles such as those under consideration (glassware in various forms, including a flower pot shape). In the March 25, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12, Customs issued a notice under 19 U.S.C. 1625 proposing to modify or revoke certain Headquarters and New York ruling letters, including HQ 957127 (cited by the protestant and discussed herein), to classify the articles described therein as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS, instead of as candle holders in subheading 9405.50.40, HTSUS. The comments submitted in response to this notice provided considerable information regarding the "pertinent factors" (see above) related to the principal use of the class or kind of goods to which the goods considered in the proposed rulings belong. Based on this information, Customs has concluded that the class or kind for goods such as those under consideration is defined by the form or shape of the article (e.g., bell-shape, similar to bell-shape, flower pot shape, tulip or flower petal shape, cube or rectangle shape, disk shape, bowl shape, and other) and its size. We have found there to be a clear distinction between glassware used as candle holders and that used for general indoor decoration based on the size of the articles, in the absence of other pertinent evidence or information. Glassware with an opening of 4 inches or less in diameter and a height or depth of 5 inches or less is used substantially more frequently as a candle holder than for any other purpose, according to the information we have obtained, and larger glassware is used substantially more frequently for general indoor decoration.

Thus, according to the above analysis, the flower pot shape glassware under consideration, made of thick glass and having a top diameter of 5 1/2" and a height of 5 1/2", is of a class or kind principally used for indoor decoration or similar purposes (i.e., its size, particularly the top diameter, precludes its inclusion in the class or kind of goods principally used as candle holders). This is consistent with the pertinent factors listed by the Courts for determining principal use (see above). That is, in regard to physical characteristics, the size of the opening permits easy access, the concave form of the interior of the base could permit a candle to slip to the side of the article, and the thickness of the glass permits use as a flower pot (compare to HQ 957127, cited by the protestant, in which the size (2" in diameter and either 2" or 3" in height) and thinness of the glass were found to support principal use as a candle holder; in regard to the absence of a drainage hole, considered in HQ 957127, we note that it is incorrect that "[f]lower pots necessarily have drainage holes" (see, e.g., Indoor Plants: Comprehensive Care and Culture, Doris F. Hirsch (1977), pp. 178-179)). Insofar as NY 894791, cited by the protestant, is concerned, the top diameter of the "flower pot candle holder" involved in that case was 2 3/4", well within the dimensions described above for the class or kind of goods principally used as candle holders. Consistent with Customs conclusions (see above) in regard to the March 25, 1988, Customs Bulletin notice, NY 894791 remains in effect for the merchandise described therein. In regard to the other pertinent factors (expectation of ultimate purchasers; channels of trade; environment of sale; and usage, economic practicality of such usage, and recognition of the trade of such usage), the evidence obtained from the public in response to the March 25, 1988, Customs Bulletin notice, supra, supports principal use for indoor decoration and not as a candle holder.

The packaging provided by the protestant, displaying glassware such as that under consideration with candles burning in them, may provide some evidence of the actual use of the merchandise, and may address the expectation of ultimate purchasers of the merchandise and the environment of sale. In this regard, however, we note the statement of the Court in Group Italglass, supra, that:

While heading 7010 is not an "actual use" provision, evidence of the actual use of the imported goods could, depending upon the quantum of proof, have some minimal relevant probative value on the issue of principal use. Similarly, evidence of the principal use of the specific imports is relevant to the principal use of the class or kind of goods to which the imported goods belong. Plainly, evidence of the actual or principal use of the specific imports standing alone could not, absent their constituting the entire class or kind of goods under consideration, make a prima facie case on the issue of principal use where the controlling issue is the principal use of the class or kind to which the merchandise belongs. [17 CIT at 1177, footnote

HOLDING:

The "flower pot vase" articles are classifiable as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not more than $3 each, under subheading 7013.99.50, HTSUS.

The protest is DENIED. 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,

Previous Ruling Next Ruling

See also: