CLA-2 CO:R:C:M 956810 KCC
Peter J. Fitch, Esq.
Fitch, King and Caffentizis
116 John Street
New York, New York 10038
RE: Wrought iron pedestals with glass vessels; NY 875420
modified; 9405.50.40; EN 94.05; candle holder; HRL 953016;
HRL 088742; HRL 089054; HRL 956048; class or kind; GRI 3(b);
essential character; General EN Rule 3(b); composite good;
glass vs. metal; EN 70.13; HRL 951789; whole character of
glass articles; HRL 953384; 7323.99.90; EN 73.23; 9403;
furniture; General EN (A) to Chapter 94; Sprouse Reitz &
Co.; Furniture Import Corp.; 8306.29.00; statuettes and
other ornaments, of base metal; EN 83.06
Dear Mr. Fitch:
This is in reference to New York (NY) 875420 issued to
Caballero Brokers, Inc., on July 2, 1992, by the Area Director of
Customs, New York Seaport, on behalf of your client, Tucan
International, which concerned the tariff classification of
several articles under the Harmonized Tariff Schedule of the
United States (HTSUS).
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), 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, 2186 (1993)
(hereinafter section 625), notice of the proposed modification of
NY 875420 was published on October 19, 1994, in the Customs
Bulletin, Volume 28, Number 42. Comments submitted in response
to the proposed modification in your letter dated November 14,
1994, were taken into consideration in rendering this decision.
FACTS:
In a letter of June 15, 1992, Caballero Brokers, Inc.,
described the three different sized wrought iron pedestals with
glass vessels as follows:
FLOOR STANDING VASE (DECORATIVE). THIS VASE-STAND IS
CONSTRUCTED OF WROUGHT IRON AND HAS A HAND BLOWN GLASS
INSERT WITH A CONCAVE BOTTOM WHICH WILL NOT ALLOW IT TO
STAND BY ITSELF EITHER ON THE FLOOR OR TABLE. THIS GLASS
CONCAVE VASE WILL BE PACKAGED SEPARATELY AND SOLD AS A
COMPLIMENT (SET) OF THE WROUGHT IRON STAND. THE VALUE OF
THIS ITEM IS APPROXIMATELY $18.00 - $13. STAND $5. GLASS.
WEIGHT OF THIS ITEM IS APPROXIMATELY 28% (LARGE), 33%
(MEDIUM), 42% (SMALL) GLASS AND THE REMAINDER OF IRON
RESPECTIVELY.
Based on this information, in NY 875420, the Area Director
of Customs, New York Seaport, classified the wrought iron
pedestals with glass vessels under subheading 8306.29.00, HTSUS,
which provides for "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 metal parts thereof...Statuettes and other
ornaments and parts thereof...Other."
You state that the article which was the subject of NY
875420 was Article I-840 R, which is now described and sold as
"Sm. Floor Candle w/insert". However, we note that NY 875420
described and classified three different sized wrought iron
pedestals with glass vessels. A current brochure and price list
were submitted with your November 14, 1994, letter depicting the
three different sized articles at issue. These articles are
described as "Lg. Floor Candle w/insert", "Md. Floor Candle
w/insert", and "Sm. Floor Candle w/insert." The prices vary from
$35.00 to $60.00, depending on size and quantity ordered.
At the time that the initial ruling request was submitted,
you state that the final use of the articles had not been
determined. You state that considering the merchandising and use
of the articles, they cannot be fairly described as decorative
vases. You contend that the articles at issue are sold and used
as illuminating candle holders. Therefore, if the classification
in NY 875420 is to be modified, the wrought iron pedestals with
glass vessels should be classified under subheading 9405.50.40,
HTSUS, as other non-electrical lamps.
The headings to be considered 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)....
7323 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....
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 metal parts thereof....
9403 Other furniture and parts thereof....
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....
ISSUE:
What is the tariff classification of the wrought iron
pedestals with glass vessels under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to terms of the headings and any
relative section or chapter notes...."
You contend that the wrought iron pedestals with glass
vessels are classifiable under subheading 9405.50.40, HTSUS, as
non-electrical lamps and lighting fittings. In understanding the
language of the HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) may be utilized. The ENs,
although not dispositive, provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989). 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."
We have previously held that empty glass candle holders are
classified under subheading 9405.50.40, HTSUS, as non-electrical
lamps and light fittings. See, HRL 953016 dated April 27, 1993,
HRL 088742 dated April 22, 1991, and HRL 089054 dated August 2,
1991, which classified glass candle holders as non-electrical
lamps and light fittings under subheading 9405.50.40, HTSUS,
pursuant to EN 94.05.
You state that the articles are advertised and used as
illuminating candle holders and, therefore, should be classified
under subheading 9405.50.40, HTSUS. However, other information
before this office indicates that the class of wrought iron
pedestals with glass vessels is not limited to candle holders.
Headquarters Ruling Letter (HRL) 956048 dated July 7, 1994,
classified similar articles, iron pedestals with glass vessels,
under subheading 7013.99.90, HTSUS, as other glassware, valued
over $5 each. HRL 956048 determined that the articles were
composite goods with the essential character imparted by the
glass vessels.
In HRL 956048 the importer marketed the articles as "spirit
lamps and votive candle burners, as the basic design is derived
from similar articles used in the late 16th and 17th century by
monasteries and churches for illumination." However, the
importer also stated that this article is a "household decorative
accessory whose use is limited solely by the imagination of the
user." We determined that classification under subheading
9405.50.40, HTSUS, was inappropriate because the metal iron
pedestal with glass vessel did not belong to the class or kind of
lamps and lighting fittings classifiable under subheading
9405.50.40, HTSUS. Even though it was marketed as a spirit lamp
and votive candle burner with its basic design derived from
similar articles used in the late 16th and 17th century by
monasteries and churches for illumination, the importer stated
that they could be used for any purpose that the buyer desires.
Therefore, we determined that it was a decorative article which
was not classifiable as a lamp or lighting fitting under
subheading 9405.50.40, HTSUS.
Based on the information before Customs, we find that the
wrought iron pedestals with glass vessels are still not of the
class or kind of lamps and lighting fittings classifiable under
subheading 9405.50.40, HTSUS. Like HRL 956048, we note that the
articles at issue are marketed as "Sm., Md., and Lg. Floor Candle
w/insert". Additionally, as you stated, we have no definitive
information that the articles are used as decorative articles nor
do we have definitive information that the articles are used as
candle holders. We do have varying information which indicates
that the articles are not solely candle holders, but decorative
articles. The importer stated that this article is a "household
decorative accessory whose use is limited solely by the
imagination of the user." Therefore, we are of the opinion that
the articles at issue are not of the class or kind of lamps and
lighting fittings, but are decorative articles which may, in some
cases hold a candle, but can also hold flowers, plants, a wine
bottle, glass beads, etc.
The article in this case is composed of an wrought iron
pedestal and a glass vessel. When, by application of GRI 2,
HTSUS, goods are prima facie classifiable under two or more
headings, GRI 3, HTSUS, is applicable. In this case,
classification is determined by application of GRI 3(b), HTSUS,
which provides:
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
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.
EN Rule 3(b)(IX) (pgs. 3-5), states 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 separable
components, provided these components are adapted 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 (emphasis in original).
In this case, we are of the opinion that the wrought iron
pedestal with glass vessel is not a set, but is a composite good.
The components of the article, the wrought iron pedestal and
glass vessel, are adapted one to the other, mutually
complementary, and together form a whole which would not normally
be offered for sale in separate parts. Therefore, we need to
determine which component imparts the essential character.
In general, essential character has been construed to mean
the attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, EN Rule 3(b) (pg. 4),
provides further factors which help determine the essential
character of goods. Factors such as bulk, quantity, weight or
value, or the role of a constituent material in relation to the
use of the goods are to be utilized, though the importance of
certain factors will vary between different kinds of goods.
Based on the information submitted, we are of the opinion
that the essential character of the wrought iron pedestal with
glass vessel is the glass vessel. The glass vessel is the
component which distinguishes the article. We note that the
glass vessel cannot stand on its own; the pedestal supports the
glass vessel. However, we are of the opinion that the glass is
the component which fulfills the function of the article; it
holds the object or objects to be displayed such as, flowers,
plants, wine bottles, candles, etc. Therefore, the glass vessel
imparts the essential character to the wrought iron pedestal with
glass vessel. See, HRL 956048.
You contend that the wrought iron pedestal imparts the
essential character of the article. As support, you cite HRL
951789 dated August 5, 1992, which held that the essential
character of a "Tiffany lamp" was the metal base and not the
"Tiffany" lamp shade. HRL 951789 determined that the structure
of the metal lamp base was the component which allowed the
article to function as a lamp. HRL 951789 determined that:
The metal components comprise the base and neck of the table
lamps which support the lamp socket and the electrical
circuitry as well as support the 'tiffany look' glass shade.
Without the metal base and neck to hold the lamp sockets and
electric circuitry in place, the table lamps would not be
able to function as a lamp.
We believe that HRL 951789 is factually distinguishable from the
instant case. Although the pedestal supports the glass, it is
not comparable to the metal components in HRL 951789. The metal
components in HRL 951789 actual held the lamp. The lamp could
function without the "Tiffany" shade, but it could not function
without the metal components. In this case, although the
pedestal supports the glass vessel, it is the glass component
which performs the holding function of the articles placed
therein. The pedestal cannot perform the holding function of the
articles on its own. Therefore, we do not find the rational in
HRL 951789 compelling for the classification of the subject
articles.
The glass vessel is classified under heading 7013, HTSUS,
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)...." EN 70.13 (pgs. 936-a), states
that heading 7013, HTSUS, covers:
Glassware for indoor decoration and other glassware
(including that for churches and the like), such as vases,
ornamental fruit bowls, statuettes, fancy articles (animals,
flowers, foliage, fruit etc.) table centres (other than
those of heading 70.09), aquaria, incense burners, etc., and
souvenirs bearing views (emphasis in original).
The glass vessel is ornamental glassware similar to a vase,
although as stated, it cannot stand by itself. Even though the
glass vessel can be used for both indoor and outside decoration,
it is of the class or kind of article classifiable under heading
7013, HTSUS. Inasmuch as the essential character is imparted by
the glass vessel, the entire composite good (wrought iron
pedestal with glass vessel) is, therefore, classified under the
tariff classification of the glass vessel. As the value of the
wrought iron pedestal with glass vessel is over $5 each, it is
classified under subheading 7013.99.90, HTSUS, as other
glassware, valued over $5 each. See, HRL 956048.
You contend that when classifying a multi-material article
under heading 7013, HTSUS, the glass portion of the article must
not only provide the essential character of the article, but must
also give the entire article the character of glass articles.
You cite to EN 70.13 which provides:
Articles of glass combined with other materials (base metal,
wood, etc.) are classified in this heading only if the glass
gives the whole the character of glass articles (emphasis in
original).
Therefore, you contend that in addition to the usual standards
for determining essential character, this note adds the
requirement that in the case of glass commingled with other
materials, such articles will be classifiable as glass only if
the glass give the entire article the character of glass.
The above-reference test from EN 70.13 deals with
classification of a glass article pursuant to GRI 1, HTSUS. In
this case, classification is based on GRI 3(b), HTSUS, as a
composite good. When classifying a composite good pursuant to
GRI 3(b), HTSUS, states that:
...composite goods consisting of different materials or made
up of different components...shall be classified as if they
consisted of the material or component which gives them
their essential character, insofar as this criterion is
applicable.
GRI 3(b), HTSUS, states that we must determine the essential
character of a composite good and then classify the entire
article pursuant to the classification of the component which
imparts the essential character. In effect, GRI 3(b), HTSUS,
directs us to ignore the remaining components and their impact on
the article. Therefore, reliance on the above-reference language
in EN 70.13 is inappropriate in this case.
Additionally, you contend that if we hold that these
articles are not classified as candle holders under subheading
9405.50.40, HTSUS, we should follow the rational in HRL 953384
dated September 14, 1994. HRL 953384 dealt with the
classification of glasses for half-yard-of-ale and foot-of-ale
stands. We determined that the glasses were considered parts of
the ale stands and were, therefore, classified under subheading
7020.00.00, HTSUS, as other articles of glass. HRL 953384
determined that the glasses could not be classified under heading
7013, HTSUS, as parts of drinking glass because that tariff
provision does not provide for parts. It is well established
that where there is no provision for parts of articles under a
tariff provision, imported merchandise held to be parts will not
be subject to classification thereunder.
We do not find HRL 953384 to be dispositive in this case.
The merchandise at hand is the entire wrought iron pedestal with
glass vessel, not merely the glass vessel. If merely the glass
vessel was imported, consideration of HRL 953384 would be
necessary. We do not believe that HRL 953384 has any bearing on
this case, nor do we believe that our finding in this case will
have any ramifications on the holding in HRL 943384.
Additionally, since in your opinion classification under
heading 7013, HTSUS, is inappropriate, you suggest classification
under subheading 7323.99.90, HTSUS, as other household articles,
of iron or steel. EN 73.26 (pgs. 1035-1036) states that:
This group comprises a wide range of iron or steel
articles, not more specifically covered by other headings of
the Nomenclature, used for table, kitchen or other household
purposes; it includes the same goods for use in hotels
restaurants, boarding-houses, hospitals, canteens, barracks,
etc.
These articles may be cast, or of iron or steel sheet,
plate, hoop, strip, wire, wire grill, wire cloth, etc., and
may be manufactured by any process (moulding, forging,
punching, stamping, etc.). They may be fitted with lids,
handles or other parts or accessories of other materials
provided that they retain the character of iron or steel
articles (emphasis in original).
The classification of the wrought iron pedestals with glass
vessels could be possible under this provision pursuant to GRI 1,
HTSUS. EN 73.23 states that the iron or steel article may
contain other parts, if the other parts do not cause the whole
article to lose its character of iron or steel. We are of the
opinion that the wrought iron pedestals with glass vessels do not
retain the character of iron or steel because they contain a
glass component. The addition of the glass component causes the
article to lose its character of iron or steel. Therefore, the
wrought iron pedestals with glass vessels are not classifiable
under subheading 7323.99.90, HTSUS, pursuant to GRI 1, HTSUS.
Consideration was also given as to whether the wrought iron
pedestal with glass vessel may be classifiable under heading
9403, HTSUS, which provides for "Other furniture and parts
thereof...." General EN (A) to Chapter 94 (pg. 1574), defines
furniture as:
Any "movable" articles (not included under other more
specific headings of the Nomenclature), which have the
essential characteristic that they are constructed for
placing on the floor or ground, and which are used, mainly
with a utilitarian purpose, to equip private dwellings,
hotels, theatres, cinemas, offices....Similar articles
(seats, chairs, etc.) for use in gardens, squares,
promenades, etc., are also included in this category
(emphasis in original).
The wrought iron pedestal with glass vessel is a movable
article which is constructed for placing on the floor or ground.
However, we are of the opinion that the article is not mainly
used for a utilitarian purpose. In determining whether certain
articles are classifiable as furniture, there is a clear
distinction between an article of utility and those used
primarily for ornamentation. See, Sprouse Reitz & Co., v. United
States, 67 Cust. Ct. 209, C.D. 4276 (1971), and Furniture Import
Corp., v. United States, 56 Cust. Ct. 125, C.D. 2619 (1966).
The wrought iron pedestal with glass vessel is a subsidiary
article designed for ornamentation. It is not an article
designed for a utilitarian purpose. Moreover, this article has
been described as "DECORATIVE" and we are of the opinion that it
is a decorative article. Therefore, the wrought iron pedestal
with glass vessel is not classified as furniture under heading
9403, HTSUS.
NY 875420 classified the wrought iron pedestal with glass
vessel under subheading 8306.29.00, HTSUS, as other statuettes
and other ornaments, of base metal. EN 83.06 (pg. 1122), states
that statuettes and other ornaments:
...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, churches, gardens (emphasis
in original).
The wrought iron pedestal has a glass vessel, which, as
stated previously, in our opinion is not a subsidiary non-metallic part. Therefore, the wrought iron pedestal with glass
vessel is not classifiable under subheading 8306.29.00, HTSUS,
pursuant to GRI 1, HTSUS.
HOLDING:
The wrought iron pedestals with glass vessels are composite
goods with the essential character imparted by the glass vessels.
Therefore, they are classified under subheading 7013.99.90,
HTSUS, as other glassware, valued over $5 each.
NY 875420 is modified as directed above. In accordance with
section 625, this ruling will become effective 60 days after its
publication in the Customs Bulletin. Publication of rulings or
decisions pursuant to section 625 does not constitute a change of
practice or position in accordance with section 177.10(c)(1),
Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division