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HQ H017657




December 12, 2007

CLA-2 OT:RR:CTF:TCM H017657 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.35

Donna Shira, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Seventy Five Broad Street
New York, NY 10004

RE: Classification of a Frosted Glass Candleholder

Dear Ms. Shira:

This is in response to your letter dated August 16, 2007, to United States Customs and Border Protection (CBP) in New York, on behalf of your client, United Retail Inc., in which you requested a binding ruling pertaining to the classification of a frosted glass candleholder under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response.

FACTS:

The subject article is a frosted glass candleholder measuring approximately 3 1/2 inches tall with a diameter opening of approximately 2 1/2 inches. The glass is frosted on the exterior and has a chrome-finished interior. A series of symbols in the form of snowflakes are removed from the chrome interior. When a candle is placed inside the glass, the snowflakes are illuminated. The depth of the glass and the chrome interior prevents this article from producing any useful or practical light.

ISSUE:

What is the proper classification under the HTSUS for the frosted glass candleholder?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order. 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:
7013.99 Other:
Other:
7013.99.35 Votive-candle holders

Other:
7013.99.5000 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, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: 9405.40 Other electric lamps and lighting fittings: 9405.40.80 Other

In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Note 1 (e) to chapter 70 provides, in pertinent part:

This chapter does not cover:

(e) Lamps or lighting fittings, illuminated signs, illuminated name-plates or the like, having a permanently fixed light source, or parts thereof of heading 9405;

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The EN to heading 9405, HTSUS (EN 9405), provides, in pertinent part:

Lamps and Lighting Fittings, Not Elsewhere Specified or Included

This heading covers in particular:

(6) Candelabra, candlesticks, candle brackets, e.g., for pianos (Emphasis in original)
At issue is whether the subject candleholder is classifiable as a lamp under heading 9405, HTSUS, or as “glassware of a kind used forindoor decoration” under heading 7013, HTSUS. We note that heading 9405, HTSUS, is potentially applicable because it applies to candelabra, candlesticks, and candle brackets. See ENs to heading 9405, HTSUS. CBP has previously determined that the term candleholder and candlestick are synonymous. See Headquarters Ruling Letter (HQ) 954308, dated June 6, 1994; HQ 955935, dated May 16, 1994; HQ 953016, dated April 27, 1993; HQ 088742, dated April 22, 1991; and HQ 089054, dated August 2, 1991.

Headings 7013 and 9405, HTSUS, as applicable to the merchandise under consideration, are controlled by use (other than actual use

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)).). 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); and Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20, 25, 748 F.2d 663 (1984). In such use provisions, articles are classifiable according to the use of the class or kind of goods to which the articles belong. Classification is controlled by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides:

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.

Goods of heading 9405, HTSUS, are used as illumination devices. To be classified in this heading, an article must provide practical or usable light. See HQ W968029, dated April 12, 2007 (Light output of an illuminated banner too low to be considered an article of heading 9405, HTSUS); and NY R01525, dated February 28, 2005 (Steel ornament not an article of heading 9405, HTSUS, because it did not provide sufficient illumination). Articles of heading 7013, HTSUS, on the other hand, need not provide practical light. Instead, they may be used purely for decorative purposes.

In March, 1998, CBP issued a notice
See Customs Bulletin, Volume 32, Number 12, page 32, dated March 25, 1998 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 candleholders in subheading 9405.50.40, HTSUS. Based on comments submitted in response to this notice, CBP concluded that the class or kind for goods classifiable under headings 7013, HTSUS, and 9405, HTSUS, is often defined by the form or shape of the article and its size. There is a general distinction between glassware used as candleholders and that used for indoor decoration based on the size of the articles. See HQ 961234, dated July 30, 1998 and HQ 965776, dated October 18, 2002. In general, such glassware with an opening of 4 inches or less in diameter and a height or depth of 5 inches or less is used more frequently as a candle holder than for any other purpose. Larger glassware is used more frequently for general indoor decoration. See HQ 961234, dated July 30, 1998 and HQ 965776, dated October 18, 2002. We note that the size of an article must be considered in conjunction with its principal use. While the size and shape of an article are helpful when determining classification, the principal use of an article is the controlling factor.

Although the instant article, because of its size, is capable of functioning as a glass candleholder, the purpose of using a candle is to illuminate the decorative glass article, not to provide light to a room. The candlelight is insufficient to be used for any practical purpose because it is blocked by the chrome lining. Notwithstanding its size and shape, the subject candleholder is excluded from heading 9405, HTSUS, because it cannot be used as an illumination device. Instead, it is classifiable as other glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS. See HQ 961842, dated March 12, 1999.

In your submission, you refer to a request from CBP for more information in order to issue a binding ruling on the subject candleholder. In that request, CBP stated that design features “such as a spike or socket fitted for the candle” are necessary to classify an article under heading 9405, HTSUS. You argue that the candleholder may be classified under heading 9405, HTSUS, despite the fact that it does not have such design features. Although spikes or fitted sockets may not be necessary, they are highly indicative of principal use. See New York Ruling Letter (NY) N018111, dated October 25, 2007 (Metal spike clearly identified an article as a candleholder of heading 9405, HTSUS); NY I83661, dated July 8, 2002 (Wooden candleholders with candle spikes classified under heading 9405, HTSUS); and NY F87432, dated June 8, 2000 (candleholder with a spike on a plate-like receptacle classified under heading 9405, HTSUS). Even if the subject candleholder did have a spike, however, it would nonetheless be excluded from heading 9405, HTSUS, because it does not provide practical or usable light.

HOLDING:

The subject glass candleholder is classifiable under subheading 7013.99.3500, HTSUSA, which provides for: “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: Votive-candle holders.” The general, column one rate of duty is 6.6 percent ad valorem.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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