CLA-2 RR:TC:MM 957654 MMC
Port Director
U.S. Customs
6 World Trade Center
New York, NY 10048
RE: Protest 1001-94-104978; Decorative crystal candle holders; EN
94.05; HRL 956347, 953016, 088742 and 089054; Kraft, Inc, v. U. S.,
G. Heilman Brewing Co. v. U. S., and U. S. v. Carborundum Company,
Hasbro Industries, Inc. v. U. S., C.J. Tower & Sons of Buffalo, Inc.
v. U.S.
Dear Port Director:
The following is our decision regarding Protest 1001-94-104978
concerning your action in classifying and assessing duty on various
4" and 5" diameter global shaped decorative crystal candle holders
under the Harmonized Tariff Schedule of the United States (HTSUS).
Samples and a catalog of protestant's products were submitted for our
examination. In preparing this ruling, consideration was given to
supplemental submissions made by counsel on behalf of the protestant
dated August 10, 1995, as well as arguments presented at a meeting at
Customs Headquarters.
FACTS:
The articles are globe-shaped crystal candle holders (glass
candle holders) with 4"and 5" diameter openings. A decorative
pattern is cut in the glass to enhance the patterns created by the
flickering candle. The samples style numbers and descriptions are as
follows:
413838-12 "Pinwheel Votive" 5" D 413836-12 not identified
in catalog
413123-12 "Essex Votive" 5" D 413126-12 "Nichole
Votive" 5"D
413841-12 "Cardiff Votive" 5" D 413884-12 "Radiance
Votive" 5"D
402807P-12 "Reflections Votive" 5" D
The glass candle holders may be imported in other smaller diameters,
and with different decorative patterns. The glass candle holders do
not appear to be of the type used for devotional purposes.
Protestant indicates that the glass candle holders may be
imported either packaged in a gift box without a candle, in plain
cardboard boxes, or with a candle. After importation, some of the
glass candle holders will be repackaged into a gift box with a brass
stand and a candle. A sample gift box with a representative
photograph of the candle holder, candle and brass stand was
submitted.
The articles were entered on April 22, and May 6, 13, and 20,
1994. Entries were liquidated under subheading 7013.99.50, HTSUS.
The protest was timely filed on July 14, 1994. Protestant contends
that the articles are classified as candle holders under subheading
9405.50.40, HTSUS. The subheadings under consideration are as
follows:
3406.00.00 Candles, tapers and the like.
7013.99.50 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...Valued
over $0.30 but not over $3 each.
9405.50.40 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...Non-electrical lamps and lighting
fittings...Other... Other.
ISSUE:
Are the various globe shaped candle holders with and without
candles packaged in a gift box or plain cardboard box classified as
non-electrical lamps and lighting fittings under subheading
9405.50.40, 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...."
GRI 6 provides that for legal purposes, the classification of goods
in the subheadings of a heading shall be determined according to the
terms of those subheadings and any related subheading notes and,
mutatis mutandis, to the above rules, on the understanding that only
subheadings at the same level are comparable. For the purposes of
this rule, the relative section, chapter and subchapter notes also
apply, unless the context otherwise requires.
Subheading 7013.99.50, HTSUS, is a use provision. There are two
principal types of classification by use:
(1) according to the actual use of the imported article; and
(2) according to the use of the class or kind of goods to which
the imported article belongs.
Use according to the class or kind of goods to which the
imported article belongs is more prevalent in the tariff schedule. A
few tariff provisions expressly state that classification is based on
the use of the class or kind of goods to which the imported article
belongs. Because subheading 7013.99.50, HTSUS, contains the
language "of the kind" and "used for", classification of goods under
them are determined by the use of the class or kind of article to
which the imported merchandise belongs.
When 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. In other words, the article's principal use at
the time of importation determines whether it is classifiable within
a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual tariff
provisions. However, the U.S. Court of International Trade (CIT) has
provided factors, which are indicative but not conclusive, to apply
when determining whether particular merchandise falls within a class
or kind. They include: general physical characteristics, the
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: Kraft, Inc, v. United States, USITR,
16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing
Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 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.
As a general rule, a glass article's physical form will indicate
its principal use and thus to what class or kind it belongs. Should,
however, an exception arise and an article's physical form does not
indicate to what class or kind it belongs or its physical form
indicates it belongs to more than one class or kind, Customs
considers the other enumerated principal use criteria. Customs is of
the opinion that the physical characteristics as well as their
environment of sale, the expectations of the ultimate purchaser and
the manner in which they are used, indicates that the subject
articles are candle holders for tariff purposes.
We are of the opinion that the subject articles, while having a
decorative nature, are not principally dedicated to the use of the
class or kind of merchandise contemplated by subheading 7013.99.50,
HTSUS. The relatively small size of each glass vessel together with
its interior depth and diameter, and its decorative pattern cut in
the glass to enhance the patterns created by the flickering candle,
are all physical characteristics consistent with a candle holder's
purpose. Furthermore, the submitted catalog indicates that these
articles with diameter openings of 5" and smaller, are dedicated to a
sole use as a candle holder.
Subheading 9405.50.40, HTSUS, provides for non-electrical lamps
and lighting fittings. In understanding the language of the HTSUS,
the Harmonized Commodity Description and Coding System (HCDCS)
Explanatory Notes (ENs) may be consulted. 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
these headings. See, T.D. 89-90, 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 are of the opinion that the terms "candlestick", "candlestick
holder", and "candle holder" are interchangeable. Candle holder
has been defined as a candlestick, Webster's II New Riverside
University Dictionary, pg. 224 (1st ed. 1984), and as a holder for a
candle; candlestick, The Random House Dictionary of the English
Language, pg. 216 (1st Ed. 1983). Candlestick has been defined as a
utensil for supporting a candle, whether elaborately made or in the
common form of a saucer with a socket in the center, Webster's New
International Dictionary , pg. 390 (2d ed. 1939). Reference to
lexicographic authorities is proper when determining the meaning of a
tariff term. Hasbro Industries, Inc. v. United States, 703 F. Supp.
941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of
Buffalo, Inc. v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
We have previously held that empty glass candle holders are
classified under subheading 9405.50.40, HTSUS, as non-electrical
lamps and lamp fittings. See, HRL 956347 dated August 30, 1994, 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.
Based on the above definitions and rulings, we find that the
glass candle holders without candles are, in fact, candlesticks as
the term is used in the ENs. The articles at issue are a utensil
used for supporting a candle. Therefore, the glass candle holders
are properly classified under subheading 9405.50.40, HTSUS, as non-
electrical lamps and light fittings.
The glass candle holder with accompanying candles are classified
under two different tariff provisions. The glass candle holder is
classified under heading 9405, HTSUS, and the candle is classified
under heading 3406, HTSUS. 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.
To determine what is a "set put up for retail sale", EN Rule 3(b)(X)
(pg. 4), 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 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 repackaging (e.g., in boxes or cases or on
boards).
As stated previously, the candle holder and candle are
classified under different headings. When combined the components
are put up together to meet a particular need or carry out a specific
activity; to provide decorative illumination. However, based on the
submitted information, it is unclear as to how the candle holder and
candle will be packaged. If the articles are packaged together for
sale directly to the consumer in either the gift box or plain
cardboard box without repackaging with the brass stand, they meet the
qualifications of a set. However, if the candle holder and candle
will be repackaged in the U.S. with the brass stand, they do not meet
the qualifications of a set. Therefore, the candle holder and candle
which will not be repackaged with the brass stand are a set for
tariff purposes. To determine the proper classification, the
essential character of the set needs to be determined.
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.
We are of the opinion that the essential character of the set is
imparted by the glass candle holder. The glass candle holder is the
central piece and the focus of the set. It is the component which
attracts the consumer and is, actually, the component which the
consumer is purchasing. The candle when burned will eventually
disappear and the consumer will purchase a replacement. Therefore,
the glass candle holder and candle set is classified under subheading
9405.50.40, HTSUS.
Classification of the candle holder and candle which is not a
set is different from the above set classification. The candle
holder and candle must be classified separately under their
respective headings. EN 94.05, states that heading 9405, HTSUS, does
not include candles of heading 3406, HTSUS. Therefore, the candle
holder will be classified under subheading 9405.50.40, HTSUS, and the
candle will be classified under subheading 3406.00.00, HTSUS, which
provides for "Candles, tapers and the like."
We note that GRI 5(b), states that "[i]n addition to the
foregoing provision, the following rules shall apply in respect of
the goods referred to therein:...
Subject to the provision of rule 5(a) above, packing materials
and packing containers entered with the goods therein shall be
classified with the goods if they are of a kind normally used
for packing such goods. However, this provision is not binding
when such packing materials or packing containers are clearly
suitable for repetitive use.
Based upon an examination of the submitted gift box sample and a
description of the plain cardboard box, we are of the opinion that
the boxes are packing materials which are to be classified with the
entered goods. The boxes are of the type in which a consumer
normally finds glass articles packaged and are clearly not designed
for repetitive use. Therefore, the boxes are classified with the
glass candle holders under subheading 9405.50.40, HTSUS.
HOLDING:
The protest should be GRANTED. The glass candle holders
imported without candles packaged in gift or plain cardboard boxes,
and the glass candle holder and candle sets are classified under
subheading 9405.50.40, HTSUS, as non- electrical lamps and lighting
fittings, with a column one duty rate of 7% ad valorem. The glass
candle holders and candles which do not qualify as sets are
classified separately under subheading 9405.50.40, HTSUS, as
non-electrical lamps and lighting fittings, and under subheading
3406.00.00, HTSUS, as candles, with a column one duty rate of 3.5% ad
valorem.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed, with the Customs Form 19, by your
office to the protestant no later than 60 days from the date of this
letter. Any reliquidation of the entry in accordance with the
decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision the Office of Regulations
and Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public via
the Diskette Subscription Service, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division