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HQ 964477




January 4, 2002

CLA-2 RR:CR:GC 964477 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7323.99.90

Rick Mosley
Kuehne & Nagel, Inc.
101 Wrangler Drive
Suite 201
Coppell, TX 75019

RE: Reconsideration of NY F86857; Decorative Steel Containers

Dear Mr. Mosley:

This is in reference to your letter dated August 14, 2000, on behalf of Tuesday Morning Partners, Ltd., in which you requested reconsideration of New York Ruling Letter (NY) F86857, issued to you by the Customs National Commodity Specialist Division, on May 26, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of, among other items, certain decorative steel containers. We have reviewed the prior ruling and have determined that the classification provided is incorrect.

Pursuant to sections 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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), a notice was published on November 28, 2001, in Vol. 35, No. 48 of the Customs Bulletin, proposing to modify NY F86857. No comments were received in response to this notice. This ruling modifies NY F86857 by providing the correct classification for the decorative steel containers.

FACTS:

In NY F86857 the subject articles were described as follows. The products involved are two styles of ‘gold’-toned decorative steel containers. Style VV911729XQ (M110053) is 6 inches in diameter and 3 inches high. The side walls are cutouts of leaves and it has a wire mesh bottom with three ball-shaped legs attached to the bottom.

Style VV911729Q (S110017) is 4 inches in diameter and 3 ¼ inches high. The side walls are cutouts of trees, holly, reindeer and snowmen. It has a solid metal bottom with three ball-shaped legs attached to the bottom. You submitted for our examination, samples which match sample S110017 in design but are in medium and large sizes.

In NY F86857 it was determined that style M110053 was a household article of iron or steel, not coated or plated with precious metal, classifiable under subheading 7323.99.9060, HTSUS. Style S110017 was found to be a non-electrical lamp or lighting fitting classifiable under subheading 9405.50.4000, HTSUS. We have reviewed that ruling and determined that the classification of style S110017 in incorrect. This ruling sets forth the correct classification.

ISSUE:

What is the proper classification under the HTSUS of the subject decorative steel containers?

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). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel;

Other:

Other:

Not coated or plated with precious metal:

7323.99.90 Other

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base meal parts thereof:

Statuettes and other ornaments, and parts thereof:

8306.29.00 Other

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:

9405.50 Non-electrical lamps and lighting fittings:

Other:

9405.50.40 Other

Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.

In E.C. Lineiro v. United States, 37 CCPA 10, CAD 411 (1949), the court states that “a designation by use may be established, although the word ‘use’ or ‘used’ does not appear in the language of the statute.” As such, it is the use of the class or kind of merchandise to which the imported article belongs, which must be determined, not the “alleged” use of the instant merchandise.

The court in E. M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996 Ct. Intl. Trade) explained the application of these types of HTSUS provisions thus:

When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See supra Additional U.S. Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g., the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490 (1976); see also Lenox Coll.[v. United States], 20 C.I.T., Slip Op. 96-30, at page 5.

In your submission dated August 14, 2000, you state that the decorative steel containers are intended to be used “as festive candleholders during the Christmas holiday season.” You state that the articles are composed of lightweight, low cost metal of nominal value and small bulk. You also state that they possess no utilitarian value and are used only as festive holiday decorations “to contain or support other decorative articles or add to their decorative effect.” This indicates that you believe the containers may be used to hold articles other than just candles. We agree. Although the articles are capable of use as candleholders, as a class or kind of merchandise, the containers may be used in the same manner as other household containers, such as bowls, platters or serving dishes. The form of these articles does not belong to the class or kind of goods that includes lamps and lighting fittings. Therefore, we find that they are not candleholders classifiable under subheading 9405.50.40, HTSUS.

You then argue that if the decorative steel containers are not classifiable as candleholders, they should be classified as statuettes and other ornaments under heading 8306, HTSUS. The EN for 83.06 states:

This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.

It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.

The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example :

(3) Table-bowls, vases, pots, jardinières (including those of cloisonné enamel). The group also includes, in the circumstances explained below, certain goods of the two following categories even though they have a utility value:

(A) Household or domestic articles whether they are potentially covered by specific headings for such goods (i.e., headings 73.23, 74.18 and 76.16) or by the “other articles” headings (e.g., in the case of articles of nickel and tin in particular). These household or domestic articles are generally designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. If, therefore, such decorated articles serve a useful purpose no less efficiently than their plainer counterparts, they are classified as domestic goods rather than in this group. On the other hand, if the usefulness of the article is clearly subordinate to its ornamental or fancy character, it should be classified in this group, for example, trays so heavily embossed that their usefulness is virtually nullified; ornaments incorporating a purely incidental tray or container usable as a trinket dish or ash-tray; and miniatures having no genuine utility value (miniature kitchen utensils).

Examination of the samples indicates that they are inexpensively made. The side walls are crudely cut out and the designs are hard to distinguish. A user is not likely to use them alone as a decorative article without placing another decorative article in it. The decorations on the articles do not impair or nullify the articles’ usefulness as a container. These containers may easily be used to serve breads, candies, or other items. Mere attractiveness and minor decorations do not convert a useful item into an ornamental article. The instant containers are not so decorated that their use would be less efficient than a plainer container. Further, we see no reason to distinguish one style from the other for classification purposes, as was done in NY F86857. Both styles (M110053 and S110017) are decorative steel containers whose usefulness is not subordinate to its ornamentation.

You cite HQ 955112 (February 14, 1994), where a silver-plated candelabra attached to a table bowl used to hold flowers as a table centerpiece was found to be classified under subheading 8306.21.00, HTSUS, which provides for statuettes and other ornaments and parts thereof, plated with precious metal. We do not find that case to be similar to the subject containers. In that case, the article was a combined article, both a candelabra and a bowl, having a much more decorative effect. The bowl seemed to have only one use, as a decorative flower holder. The ruling stated that the “article’s usefulness is subordinate to its decorative effect”. In the instant case, the containers have multiple uses. There is no candelabra attached to accentuate any decorativeness the container might have. Unlike the article described in HQ 955112, it is more useful than decorative. Therefore, we find that both styles of steel containers are classifiable under subheading 7323.99.90, HTSUS, as table, kitchen or other household articles, of iron or steel, not coated or plated with precious metal, other.

HOLDING:

In accordance with the above discussion, the decorative steel containers, Style VV911729XQ (M110053) and Style VV911729Q (S110017), are classified in subheading 7323.99.90, HTSUS, as table, kitchen or other household articles, of iron or steel, not coated or plated with precious metal, other.

EFFECT ON OTHER RULING:

NY F86857, dated May 26, 2000, is MODIFIED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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