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HQ 965998




December 17, 2002

CLA-2 RR:CR:GC 965998 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036

RE: Classification request; Glass bowl with artificial flowers and candles

Dear Ms. Wierbicki:

In your letter to the Director, National Commodity Specialist Division, New York, dated September 20, 2002, on behalf of importer Avon Products, Inc., you inquire as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a glass bowl with artificial flowers and candles. Your letter was forwarded to this office for reply. A sample was provided for our examination, which you have indicated we may keep. A teleconference was held between you and members of my staff on November 14, 2002, to discuss relevant case issues. You asked for and received time to submit new material regarding the merchandise, which you did on November 29, 2002.

FACTS:

You call the merchandise a “Floating Rose Candle in a Bowl,” style PP250246. It is described as a set consisting of three wax candles, and a glass bowl containing artificial flowers housed within, which you describe as a “glass candle holder.” The glass bowl is approximately 5 ¾ inches in diameter and 3 inches in height. The article contains a “lip” which folds under itself, creating a recessed area. The recessed area of the glass article measures approximately 2 ½ inches deep and 4 ¼ inches wide. You state that the recessed area is too shallow to hold anything besides floating candles. You state that there will be three candles included in the set. You report the candles are made of petroleum wax and are rose-shaped, each measuring approximately 1 inch high and 2 inches in diameter and featuring a single top wick. You state that water can be poured into the recessed area and the candles can float on the water. You also indicate that two artificial pink roses matching in general appearance to the candles will also be included. You indicate that the items will be imported packed together, ready for retail sale.

You contend that the set should be classified as a candle holder under subheading 9405.50.40, HTSUS, which provides for other non-electrical lamps or lamp fittings. You also contend that New York Rulings (NYs) H88956, dated March 6, 2002, F88138, dated July 7, 2000, and E87526, dated September 27, 1999 support this classification. Substantially similar items, however, have been classified as decorative glassware, under subheading 7013.99, HTSUS. See NYs G87724, dated March 29, 2001; H82701, dated June 29, 2001; and I81703, dated March 14, 2002.

Thus, the HTSUS provisions 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:

Other:
Other:
Other:

Valued not over $0.30 each
Valued over $0.30 but not over $3 each

Valued over $3 each:
Other:
Valued over $3 but not over $5 each
7013.99.90 Valued over $5 each

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

ISSUE:

What is the proper tariff classification for this merchandise: 7013.99, as a decorative glass article or 9405.50.40, as a candle holder?

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), when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to [GRI] 3(a) [i.e., by the heading which provides the most specific description], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as the criterion is applicable.

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 of August 23, 1989 (54 FR 35127, 35128).

Classification of the Glass Article
Headings 7013 and 9405, HTSUS, are use provisions, under which articles are classifiable according to the use of the class or kind of goods to which the articles belong. 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). 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.

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).

The first criterion in determining principal use is the physical characteristics of the article. In this regard, we have held that glassware must have physical attributes making it particularly suited in some way to use as a candle holder (e.g., in a bell or similarly shaped article, the opening turns outward so that it is large enough that the top of the glass, nearest to the candle flame is not over-heated; or the form of the glassware by itself or in combination with other materials makes “[a] dramatic display for candles”) to support a determination of principal use as a candle holder (see notices in the CUSTOMS BULLETINS of March 25, 1998, Volume 32, Number 12, page 32, and July 15, 1998, Volume 32, Number 28, page 12; HR 961866 dated July 29, 1998). In this case, the subject glass bowl has no physical attributes making it particularly suited for use as a candle holder, but is a decorative article in its own right. Indeed, the physical form of the glassware is not that of a candle holder (e.g. there is no spike at the bottom to hold a candle and the size is greater than that of a standard-sized candle holder). In fact, the glassware is over 5 inches in diameter and the recessed area of the candle holder is 4 ¼ inches in diameter and 2 inches high, enabling the glassware to be used for other decorative purposes. Instead, the physical form and size of the merchandise is that of a general purpose decorative article, which could be used to hold potpourri, soaps or other decorative items, as well as candles.

In your supplemental material, you argue that use of the bowl as anything other than a candle holder would be a fugitive use. We disagree as the physical form and size indicates otherwise. We remain unconvinced that the design of this particular type of glass bowl, with an oversized lip creating a recessed area on top and allowing decorative materials such as flowers to be displayed inside the lip of the bowl, makes them particularly suited to holding candles. Indeed, in some of the pictures you submitted, the glass bowls are pictured holding other materials besides candles. Moreover, in the material you provided, these other bowls are advertised variously as “Infinity” bowls or as glass bowls, as well as candle bowls, with a couple of sources advertising them as candle holders. In fact, most of the bowls shown in this literature are of different sizes and shapes than the subject articles and are not designed to allow for the display of decorative flowers inside the glass bowl. The principal connection between this glass bowl and the other glass bowls seems to be that one can float candles in them. However, having the ability to contain floating candles, among other things, does not make a bowl “particularly suited” to be a candle holder.

Additionally, while the promotional literature for the subject article from Avon seems to indicate that the article is sold as a candle holder, the promotional literature supplied for another company describes a decorative use, (i.e., describing the “decorative” use of glass bowls with floating candles as centerpieces at weddings and other formal functions). According to EN 70.13, heading 7013 includes “[g]lassware for indoor decoration . . . [including] table-centres [sic]. . .” (emphasis in original), which would seem to indicate that those floating candle centerpieces would fall under heading 7013. Further, in regard to the economic practicality of this use, a candle is consumed as it is used, so that the glass article could continue to be used, whether to hold other candles or for decoration, after the candles are consumed. Thus, we feel that the supplemental material supplied by you is inconclusive as to the principal use of the glass article.

Because the general physical characteristics do not support principal use as a candle holder and in the absence of any evidence except the inconclusive Internet material, we conclude that the glass bowls are not of a class or kind principally used as candle holders. We feel that the subject article falls under the classification of other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS.

Composite good
EN Rule 3(b)(IX) states, in part, that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separate components, provided these components are adopted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

In this case, we are of the opinion that the glass bowl with the artificial flowers inside it is a composite good. The subject glass bowl is made of two components, a glass bowl and artificial flowers, which are prima facie classifiable under two different headings: heading 7013, decorative glassware and heading 6702, artificial flowers and foliage. Each of the headings in question refers to only part of the subject merchandise. The components of the article, the glass bowl and the artificial flowers, are adapted one to the other, mutually complementary, and together form a whole which would not normally be offered for sale in separate parts. The form of the artificial flowers is such that they would not be displayed on their own. The glass bowl is of a shape to encapsulate the flowers.

In general, essential character has been construed to mean the attribute that strongly marks or serves to distinguish what an article is or that which is indispensable to the structure, core or condition of the article. EN Rule 3(b)(VIII) provides factors that help determine the essential character of goods. The factors listed in EN Rule 3(b)(VIII) include the nature of the material or component, bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods.

Based on the information submitted, we determine that the essential character of the glass bowl with the artificial flowers inside it is the glass bowl. The glass bowl is the component that distinguishes the article. It is the component that fulfills the function of the article and provides the main decoration for the merchandise. The artificial flowers are ancillary and merely serve to enhance the decoration provided by the glass bowl. Moreover, the importer has stated that the value of the glass bowl is greater than the value of the artificial flowers. Therefore, the glass bowl imparts the essential character to the merchandise. We feel that the composite good falls under the classification of other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS.

Classification of the Set
In your original letter, you indicate that the composite glass article and the candles will be packaged together, ready for retail sale. You also claim that they should be classified together as a retail set under EN GRI 3(b)(X). To determine what is a “set put up for retail sale,” EN Rule 3(b)(X), provides a three-part test for “goods put up in sets for retail sale”:

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 facia, 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 repackaging (e.g., in boxes or cases or on boards).

Applying the above GRI 3(b) EN criteria, the instant goods are different goods classifiable in different headings: decorative glassware, classified in heading 7013, and candles, classified in heading 3406. Criteria (a). The goods are put up together to meet the particular need of decoration. See HQ 961866, dated July 29, 1998. Criteria (b). The goods are put up in a manner suitable for sale directly to users without repacking; according to you, the glass article and candles will be packaged together ready for retail sale. Criteria (c).

Classification of the set is determined on the basis of the component which gives it its essential character. The same factors applied to determine the essential character of the composite good are used to determine the essential character of the set (see above). Based on the information submitted, we determine that the essential character of the set is provided by the decorative glass bowl. The glass bowl is the component that distinguishes the set. It is the component that fulfills the function of the article, serving as a decoration. The candles merely serve as a means to achieve one possible use. Further, a candle is consumed as it is used, so that the glassware component of the set could continue to be used, whether to hold other candles or for decoration, after the candles in the set are consumed. Therefore, the glass bowl imparts the essential character to the set.

The other factors listed in EN Rule 3(b)(VIII), however, may be used to establish essential character. Each of the factors (quantity, bulk, weight, and value) appears to support the determination that the decorative glass bowl as being determinative of essential character. Indeed, the importer has stated that the value of the glass bowl is greater than the value of the artificial flowers and the candles combined. Accordingly, we conclude that the essential character of the set is provided by the decorative glassware. The set is classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS.

In your original letter you stated that the set should be classified as a candle holder under subheading 9405.50.40, HTSUS, which provides for other non-electrical lamps or lamp fittings. Additionally, you have cited New York Rulings (NYs) H88956, dated March 6, 2002, F88138, dated July 7, 2000, and E87526, dated September 27, 1999 to support this classification. However, the products classified in those rulings can be distinguished from the articles under classification in this case. In NY H88956, we classified the glass articles as a candle holder under subheading 9405.50.40, HTSUS. However, in that case, the article consisted of a larger globe-shaped glass bowl filled with water and decorated with two artificial flowers, with a smaller cone-shaped glass bowl being placed in the larger bowl and filled with water to hold the floating candle. In that ruling, the glass bowl used to hold the candle was smaller than the bowl in this case, the bowl was cone-shaped, and it did not have an oversized lip. NYs F88138 and E87526 involve cylindrical glass articles which are smaller and narrower than the glass bowl in this case. Based on form, shape, and size the glass articles in those three rulings were classified as candle holders, under subheading 9405.50.40, HTSUS. In this case, however, as stated above, the principal use of the merchandise is not to hold candles, but is to serve as decorative glassware, on the basis of the physical form of the merchandise.

In the absence of aspects of the physical form of the imported articles that indicate that the principal use of the merchandise is to hold a candle, we conclude that the principal use of the class or kind of the merchandise under consideration is as glassware used for indoor decoration or similar purposes, under subheading 7013.99.

For your information, petroleum wax candles 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 U.S. Department of Commerce, Import Administration administers antidumping duties. You have stated that you are seeking a determination from Import Administration on whether the candles in this set are subject to the antidumping duty order on petroleum wax candles from the People’s Republic of China.

HOLDING:

The glassware and candles make up a set for retail sale, which is classifiable under subheading 7013.99, HTSUS, which provides for “[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): * * * Other glassware: * * *. ” Depending on the value of the composite glassware, it may be classified under the following subheadings:

If the value of the composite glassware is not over $0.30, then it is classified in subheading 7013.99.40, HTSUS. If the value of the composite glassware is over $0.30 but not over $3, then it is classified in subheading 7013.99.50, HTSUS. If the value of the composite glassware is over $3 but not over $5, then it is classified in subheading 7013.99.80, HTSUS. If the value of the composite glassware is over $5, then it is classified in subheading 7013.99.90, HTSUS.

Sincerely,

Myles B. Harmon

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