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HQ 961211




July 23, 1988

CLA-2 RR:CR:GC 961211 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50; 7323.99.90; 9405.50.40

Ms. Darlene DiBernardo
Manager, U.S. Regulatory Affairs
Livingston International, Inc.
100 Walnut Street
P.O. Box 2850
Champlain, New York 12919

RE: Flower pot-shaped glassware with metal stand; candle holder; glassware for table, kitchen, toilet, office, indoor decoration; principal use; U.S. Additional Note 1(a); EN Rule 3(b)(IX); HQs 956810; 957794; 960499; 960503; NY 888716

Dear Ms. DiBernardo:

This is in reference to your request on behalf of Libbey Canada, Inc., to the Director, Customs National Commodity Specialist Division, New York, N.Y., dated November 24, 1997, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of flower pot-shaped glassware with a metal stand. A sample was provided. Your letter was referred to this office for reply. We regret the delay.

You raise the issue of the applicability of General Rule of Interpretation (GRI) 3(b) to the classification of the merchandise. As stated in the ruling, because classification is determined under GRI 1, no GRI 3(b) analysis is necessary. For an analysis of the applicability of GRI 3(b) to similar articles, see Headquarters Ruling Letters (HQs) 960499 dated July 8, 1998, and 961095 dated July 20, 1998. You also raise the issue of the applicability of subheading 9801.00.10, HTSUS, in the context of GRI 3(b). In this regard, see HQ 961095. In regard to your questions on country of origin marking requirements, origin for purposes of invoice and duty calculation, and qualification for duty-free treatment under subheading 9801.00.10, HTSUS, see HQ 559421 dated September 16, 1996.

FACTS:

The merchandise under consideration consists of a flower pot-shaped article of glass with a metal stand. The glassware is clear with a green tint and has an outside top diameter of 3 7/8" and an outside base diameter of 2 3/4". It is 3 1/2" in height. The stand is 4" wide and 4 1/8" high. The stand appears to be of coated iron or steel and consists of a ring onto which are attached three legs. The glassware and stand are packaged in a cardboard display container. The glassware and stand are described on the container as "Garden Server" and the container has an illustration of the article used to hold a salsa or similar mixture. You describe the article as a "server/votive".

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 1998 general column one rate of duty for goods classifiable under this provision is 30% ad valorem; that for goods of Mexico qualifying for NAFTA treatment is 20% ad valorem.

7323.99.90 Table, kitchen or other household articles and parts thereof, of iron or steel; ...: Other: ... Other: ... Not coated or plated with precious metal: ... Other: ... Other.

The 1998 general column one rate of duty for goods classifiable under this provision is 3.4% ad valorem; goods of Mexico qualifying for NAFTA treatment are duty-free.

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 1998 general column one rate of duty for goods classifiable under this provision is 6.3% ad valorem; goods of Mexico qualifying for NAFTA treatment are duty-free.

ISSUE:

Whether the flower pot-shaped glassware with metal stand is classifiable as glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS, other table, kitchen or other household articles of iron or steel in subheading 7323.99.90, HTSUS, or other non-electrical lamps and lighting fittings in subheading 9405.50.40, HTSUS.

LAW AND ANALYSIS:

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, taken in order. Pursuant to GRI 3(b), goods which are prima facie classifiable under two or more headings shall be classified as if they consisted of the material or component which gives them their essential character. Because the GRIs are applied in order, when merchandise is classified under GRI 1 no essential character analysis pursuant to GRI 3(b) need be performed (Bradford Industries, Inc. v. United States, 968 F. Supp. 732 (1997)).

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Subheadings 7013.99.50, 7323.99.90, 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 U.S. 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 contended to be principally used as candle holders). In the March 25, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12, page 32, Customs issued a notice under 19 U.S.C. 1625 proposing to modify or revoke two Headquarters and five New York ruling letters (including the ruling you cite, HQ 957127), 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 shapes) 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. See the July 15, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 28, page 12, wherein the March 25, 1998, CUSTOMS BULLETIN notice was withdrawn.

The glass component of the article under consideration is in the shape of a flower pot and is of clear green tinted glass. It has a top diameter of 3 7/8", a diameter at the base of 2 3/4", and a height of 3 1/2". This article is of a form and size, based on the above-described information, which indicates 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 small size of the opening prevents easy access and the overall appearance of the article provides, in the words of advertising literature for similar articles, "[a] dramatic display for candles". 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, 1998, Customs Bulletin notice supports principal use of the articles as candle holders. Accordingly, the glassware and metal stand is classified as non-electrical lamps and lighting fittings in subheading 9405.50.40, HTSUS.

HOLDING:

The flower pot-shaped glassware with metal stand is classifiable as other non-electrical lamps and lighting fittings in subheading 9405.50.40, HTSUS.

Sincerely,

John Durant, Director

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