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HQ 962860




November 16, 1999

CLA-2 RR:CR:GC 962860 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044

RE: Internal Advice 11/99; two piece decorative glass article.

Dear Port Director:

The following is our decision regarding your memorandum (CLA 2:07:EC), dated April 16, 1999, forwarding Internal Advice 11/99, which was initiated by counsel on behalf of the Gerson Company, and seeks classification of a two piece decorative glass article pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). A sample was provided for our examination. We regret the delay in responding.

FACTS:

Based upon the information and sample provided, the product consists of two articles of glass, one with a 2 1/2" opening at the top and a classic lantern design which roughly resembles a hurricane lamp. This piece is approximately 5" in height. From the 2 1/2" inch opening the diameter is reduced to approximately 2 1/4", and then is widened to approximately 3 3/4" inches, which is then reduced to a “shelf” which measures approximately 1/8" in height and 2 3/4" in diameter, which is further reduced to a cylinder approximately 2" in diameter and 1 3/8" in height. This cylinder fits into the globe-like base. When placed on the globe-like base, the “shelf” portion of this piece rests on the lip of the globe shaped base.

The globe-like base resembles a small, round fishbowl and measures approximately 4 3/8" in height. The opening measures approximately 2 5/8" in diameter, which is reduced to 2 1/4", which is widened to approximately 4 1/8", which is then reduced to a base which measures approximately 2".

The article is packaged in a box which refers to it as a “two piece glass candle holder” and describes the article as “blown glass from Mexico.” The article is depicted on one panel of the container with a red candle burning and the base filled with pine needles and a poinsettia flower, and the exterior tied with ribbons for a Christmas motif. The opposite panel depicts the article with a white candle burning, potpourri within the base, and the exterior decorated with flowers. The two remaining panels provide directions on how to recreate the decorations depicted in the photographs. A disclaimer states that only the two piece glass article is contained in the package. Neither the candles nor any of the other fillings or decorations are included within the package.

ISSUE:

Whether the article should be classified under subheading 7013.99.50, HTSUS, as a decorative glass article; or subheading 9405.50.40, HTSUS, as a candleholder?

LAW and ANALYSIS:

Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). 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 3(b) provides, in pertinent part, that “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.”

The applicable HTSUS headings and subheadings under consideration 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):
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each.

9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illumi nated nameplates and the like, having a perma nently fixed light source, and parts thereof not elsewhere specified or included:
9405.50 Nonelectrical lamps and lighting fittings: Other:

9405.50.40 Other.

Headings 7013 and 9405, 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); StewartWarner 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 C.F.R. §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. 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, 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 the glassware component of goods such as those under consideration is defined by the form or shape of the article (e.g., bellshape, similar to bellshape, 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 candleholders 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 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. 8980, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

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.”

The glass components of the article under consideration resemble a small lantern or hurricane lamp which rests on a globe shaped base, which are not of the forms or shapes considered in the March 25, 1998, CUSTOMS BULLETIN. However, it (the article with the candle holder held by the base) is a size which we found, based on the review described above, indicates its inclusion in the class or kind of goods principally used as candle holders. We note that the cylinder portion at the bottom resembles a “votive” type candleholder and that the shape of the upper portion is similar to that of the “shade” of an oil lantern. Additionally, the promotional literature for the article indicates that the environment of sale of the article is one for candleholders, not general-purpose decorative glassware. Imported separately, this article would be classifiable within heading 9405, HTSUS, as a candleholder. The globe shaped base functions in a similar manner to the wrought iron pedestals in the rulings referred to below; its form indicates use to hold the upper portion of the article, or, if imported separately, as a general purpose decorative article, such as a vase or potpourri holder (classifiable within heading 7013, HTSUS).

The two articles make up a set put up for retail sale for purposes of GRI 3(b). That is, they are, prima facie, classifiable in different headings (see above), they are put together to meet a particular need or carry out a specific activity (that of serving as a decorative candle holder), and they are put up in a manner suitable for sale directly to users without repacking (see, e.g., Headquarters Ruling (HQ) 962090, dated June 11, 1999). Pursuant to GRI 3(b), classification of the set is determined on the basis of the component which imparts the essential character to the whole. EN Rule 3(b)(VII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of the constituent materials or components in relation to the use of the goods.

Recently, there have been several decisions on “essential character” for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed 171 F.3d 1370 (Fed. Cir. 1999)

Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors in EN Rule 3(b)(VII) should also be considered, as applicable. In this case, the “indispensable function” (Better Home Plastics, supra) of the article is to “hold” or “contain” a candle (as shown in the promotional literature). Clearly, the upper component performs this function, with the base performing the subsidiary function of “holding” the candleholder. Insofar as the other factors (quantity, bulk, weight and value) are concerned, the available evidence is not definitive, but they do not appear to contradict the conclusion that the upper component provides the essential character of the set. Accordingly, we conclude that the article is of the class or kind principally used as a nonelectrical lamp and lighting fitting in heading 9405, HTSUS, and is classifiable under that heading.

The articles will be classified within subheading 9405.50.40, HTSUS, as a candle holder.

This determination is consistent with other rulings issued by this office:

In HQ 957794, dated October 2, 1995, glass articles with wrought iron bases were classified within heading 9405, HTSUS. In that ruling we noted that

[w]e have previously held that empty glass candle holders are classified under subheading 9405.50.40, HTSUS, as nonelectrical lamps and light fittings. See, HQ 957127 dated May 16, 1995, HQ 953016 dated April 27, 1993, HQ 088742 dated April 22, 1991, and HQ 089054 dated August 2, 1991, which classified glass candle holders as nonelectrical lamps and light fittings under subheading 9405.50.40, HTSUS, pursuant to EN 94.05.

See also HQ 960503, dated July 9, 1998, in which a cone shaped glass article with metal pedestal was classified under subheading 9405.50.40, HTSUS.

HOLDING:

The two piece decorative glass articles are classified in subheading 9405.50.40, HTSUS, as candle holders.

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other public methods of distribution.

Sincerely,


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