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HQ 965054

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March 19, 2002

CLA-2 RR:CR:GC 965054 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.00

Port Director of Customs
John F. Kennedy Airport
Building # 77
Jamaica, NY 11430

RE: Protest 1001-00-103886; “Vwear” Candle Sets

Dear Port Director:

The following is our decision regarding Protest 1001-00-103886, dated March 21, 2001, filed by counsel on behalf of Cyrk, Inc., against your classification of “Vwear” Candle Sets under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was provided.

FACTS:

The article at issue is a “Vwear” Candle Set that consists of a wax-filled, frosted, white glass candle holder (8 centimeters (cm) diameter x 9.5 cm in height) with a base metal lid and two wax-filled, frosted, burgundy glass candle holders (7.2 cm diameter x 7.5 cm in height). They are packaged and distributed together as a set.

The protestant contends alternatively that the “Vwear” Candle Sets should be classified under subheading 9405.50.40, HTSUS, which provides for other non-electrical lamps, or under separate subheadings by component: 9405.50.40, HTSUS, for the candle holder, 7326.90.85, HTSUS, for the metal lid, and 3406.00.00, HTSUS, for the candle.

The protestant contends that Headquarters Ruling Letters (HQs) 957654, and 957853, both dated February 27, 1996, are dispositive of the issues presented herein, and that under the authority of those rulings, the articles at issue are classifiable under subheading 9405.50.40, HTSUS, which provides for candle holders.

The articles were entered in October, 1997, and the entries were liquidated on June 9, 2000, with classification of the set under subheading 3406.00.00, HTSUS, which provides for candles. The protest was filed on September 5, 2000.

ISSUE:

Whether the “Vwear” Candle Sets are classifiable by the essential character of the candle sets under heading 3406, HTSUS, which provides for candles; or separately according to the constituent materials of the separate components?

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 is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The HTSUS provisions under consideration are as follows:

3406 Candles, tapers and the like.
7326 Other articles of iron or steel:
Forged or stamped, but not further worked: 7326.90 Other:
Other:
7326.90.85 Other.
9405 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 Nonelectrical lamps and lighting fittings: Other:
9405.50.40 Other.

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. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

"Candles, tapers and the like" are provided for under subheading 3406.00.00, HTSUS. The EN to heading 3406 provides that "[c]andles, tapers (including ball or coiled tapers), etc., are usually made of tallow, stearin, paraffin wax or other waxes [and] [t]he heading covers these goods whether or not coloured, perfumed, decorated, etc." In Headquarters Ruling Letter 956577, dated April 17, 1995, we considered the classification of “a glass jar [with a bail and trigger closure] that contain[ed] a candle wick and candle wax” in which “the candle wax was poured in the jar as a liquid and solidified to take the shape of the jar.” After acknowledging that the article was prima facie classifiable under separate headings (headings 3406 (which provides for candles) and 7010 (which provides for various containers of glass), HTSUS) and analyzing the essential character of the article pursuant to GRI 3(b), we concluded that the candle imparted the essential character of the article. In reaching that conclusion, we noted that several prior rulings (New York Rulings Letters (NY) 888752 dated August 18, 1993, NY 885353, dated May 18, 1993, and NY 889763, dated September 17, 1993) reached similar conclusions.

We have considered the protestant’s arguments that HQs 957654 and 957853, both dated February 27, 1996, are dispositive of the issues presented in this matter. We conclude that the articles in those rulings are distinguishable from those under consideration because the articles at issue consist of candles in the shape of inexpensive glass articles (as a result of being poured into the glass in the molten state). In HQs 957654 and 957853, the glass containers were made of crystal, the candles and glass containers were distinct (i.e., the wax and wick were not poured into the glass as liquid and were not in the shape of the glass container) and there was question as to whether the candles and containers were imported and marketed as a set or individually. We find those rulings to be clearly distinguishable and therefore inapposite to the instant analysis.

In the instant matter, the cylinder-shaped glassware without a candle would be classified under either heading 7013 or 9405, HTSUS. The metal lid would be classifiable under heading 7326, HTSUS, which provides for other articles of iron or steel.

An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In its condition as imported, the glass article is filled with wax and wick, and the metal lid is imported with that article.

The “Vwear” Candle Sets make up "goods put up in sets for retail sales" for purposes of GRI 3(b), assuming that the items are packaged in a manner suitable for sale directly to users without repacking. See generally, the Informed Compliance Publication (ICP) entitled “What Every Member of the Trade Community Should Know About: Classification of Sets under the HTS” (September, 1999) and EN X to GRI 3(b): For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The candle (including the glassware in which it was poured, see above) and the metal lid are, prima facie, classifiable under different headings. Therefore, under GRI 3(b), classification of the set is determined on the basis of the component that gives it its essential character. EN Rule 3(b)(VIII) 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 a constituent material in relation to the use of the goods.

Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. Customs had classified the sets on the basis of the textile curtain under the "default rule of GRI 3(c)", after determining that neither the relative specificity test nor the essential character test was applicable (119 F.3d at 971). The CIT found that the plastic liner performed the indispensable function of keeping water inside the shower and therefore held that the plastic liner imparted the essential character upon the set.

In this case, the "indispensable function" (Better Home Plastics, supra) of the set is imparted by the candle. The function of the candle is to provide light (and scent) and the role of the glassware is stated to be to hold the candle. Thus, the article should be classified under heading 3406, HTSUS, which provides for candles.

This conclusion comports with the determinations made in HQ 956577 (see above) and HQ 961866, dated July 29, 1998, which classified, among other things, a “3 [inch] square” and “double old fashioned” glassware that were imported with a “package of wax beads and wick” under heading 3406, HTSUS, as candles, tapers and the like. In reaching that conclusion, we noted that generally a candle melted into and taking the shape of an inexpensive glass jar or other container is classified as a candle in subheading 3406.00.00, HTSUS (see HQs 951021 dated April 9, 1992 and 958535 dated December 4, 1995; see also NYs 811735 dated July 10, 1995, and B89261 dated October 10, 1997).

As noted in HQ 961866, dated July 29, 1998, "... scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks[,] sold in the ... shapes [of] tapers, spirals and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax filled containers" from the People’s Republic of China and classified in subheading 3406.00.00, HTSUS, are subject to antidumping duties (Notice of Antidumping Duty Order: Petroleum Wax Candles from the People’s Republic of China, Case A-570-504, Federal Register of August 28, 1986 (51 F.R. 30686). The candles are covered by this antidumping order.

The Customs Service has been designated to administer the HTSUS. Therefore, the classification of imported merchandise is a matter properly determined by this agency. The determination of whether specific merchandise is subject to antidumping duties is within the purview of the International Trade Administration (“ITA”), U.S. Department of Commerce. The Court of International Trade has stated:

The Court distinguishes between the authority of the Customs Service to classify according to tariff classifications (19 USC § 1500) and the power of the agencies administering the antidumping law to determine a class or kind of merchandise. The determinations under the antidumping law may properly result in the creation of classes which do not correspond to classification found in the tariff schedules or may define or modify a known classification in a manner not contemplated or desired by the Customs Service.

Royal Business Machines, Inc., et al. v. U.S., 1 CIT 80, 87 (1980), 507 F.Supp. 1007, aff'd, 669 F.2d 692 (1982). Thus, the Commerce Department's antidumping scope determination applies to the merchandise named in that determination regardless of where Customs classifies that merchandise.

HOLDING:

The “Vwear” Candle Sets are classified under subheading 3406.00.00, HTSUS, which provides for candles.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, 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 methods of public distribution.

Sincerely,

John Durant, Director

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See also:

• Tariff No.: 3406.00.00 - Candles, tapers and the like
• Tariff No.: 7326.90.85 - Iron or steel, articles, nesoi
• Tariff No.: 9405.50.40 - Non-electrical lamps and lighting fixtures nesoi, not of brass