CLA-2 RR:CR:GC 961211 PH
Ms. Darlene DiBernardo
Manager, U.S. Regulatory Affairs
Livingston International, Inc.
100 Walnut Street
P.O. Box 2850
Champlain, New York 12919
RE: Flower pot-shaped glassware with metal stand; candle holder;
glassware for table, kitchen, toilet, office, indoor
decoration; principal use; U.S. Additional Note 1(a); EN
Rule 3(b)(IX); HQs 956810; 957794; 960499; 960503; NY 888716
Dear Ms. DiBernardo:
This is in reference to your request on behalf of Libbey
Canada, Inc., to the Director, Customs National Commodity
Specialist Division, New York, N.Y., dated November 24, 1997, for
a ruling as to the classification under the Harmonized Tariff
Schedule of the United States (HTSUS), of flower pot-shaped
glassware with a metal stand. A sample was provided. Your
letter was referred to this office for reply. We regret the
delay.
You raise the issue of the applicability of General Rule of
Interpretation (GRI) 3(b) to the classification of the
merchandise. As stated in the ruling, because classification is
determined under GRI 1, no GRI 3(b) analysis is necessary. For
an analysis of the applicability of GRI 3(b) to similar articles,
see Headquarters Ruling Letters (HQs) 960499 dated July 8, 1998,
and 961095 dated July 20, 1998. You also raise the issue of the
applicability of subheading 9801.00.10, HTSUS, in the context of
GRI 3(b). In this regard, see HQ 961095. In regard to your
questions on country of origin marking requirements, origin for
purposes of invoice and duty calculation, and qualification for
duty-free treatment under subheading 9801.00.10, HTSUS, see HQ
559421 dated September 16, 1996.
FACTS:
The merchandise under consideration consists of a flower
pot-shaped article of glass with a metal stand. The glassware is
clear with a green tint and has an outside top diameter of 3 7/8"
and an outside base diameter of 2 3/4". It is 3 1/2" in height.
The stand is 4" wide and 4 1/8" high. The stand appears to be of
coated iron or steel and consists of a ring onto which are
attached three legs. The glassware and stand are packaged in a
cardboard display container. The glassware and stand are
described on the container as "Garden Server" and the container
has an illustration of the article used to hold a salsa or
similar mixture. You describe the article as a "server/votive".
The subheadings under consideration are as follows:
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:
... Other: ... Valued over $0.30 but not over $3
each.
The 1998 general column one rate of duty for goods classifiable
under this provision is 30% ad valorem; that for goods of Mexico
qualifying for NAFTA treatment is 20% ad valorem.
7323.99.90 Table, kitchen or other household articles and
parts thereof, of iron or steel; ...: Other: ...
Other: ... Not coated or plated with precious
metal: ... Other: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 3.4% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
9405.50.40 Lamps and lighting fittings including searchlights
and spotlights and parts thereof, not elsewhere specified or included; ...: ...
Non-electrical lamps and lighting fittings: ...
Other: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 6.3% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
ISSUE:
Whether the flower pot-shaped glassware with metal stand is
classifiable as glassware of a kind used for indoor decoration or
similar purposes in subheading 7013.99.50, HTSUS, other table,
kitchen or other household articles of iron or steel in
subheading 7323.99.90, HTSUS, or other non-electrical lamps and
lighting fittings in subheading 9405.50.40, HTSUS.
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), goods which are prima facie classifiable
under two or more headings shall be classified as if they
consisted of the material or component which gives them their
essential character. Because the GRIs are applied in order, when
merchandise is classified under GRI 1 no essential character
analysis pursuant to GRI 3(b) need be performed (Bradford
Industries, Inc. v. United States, 968 F. Supp. 732 (1997)).
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. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
Subheadings 7013.99.50, 7323.99.90, and 9405.50.40, HTSUS,
as applicable to the merchandise under consideration, are
controlled by use (other than actual use) (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); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20,
25, 748 F.2d 663 (1984)). In such provisions, articles are
classifiable according to the use of the class or kind of goods
to which the articles belong. 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.
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 (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)).
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).
This office recently has exhaustively reviewed the principal
use of articles such as those under consideration (glassware in
various forms contended to be principally used as candle
holders). In the March 25, 1998, edition of the CUSTOMS
BULLETIN, Volume 32, Number 12, page 32, Customs issued a notice
under 19 U.S.C. 1625 proposing to modify or revoke two
Headquarters and five New York ruling letters (including the
ruling you cite, HQ 957127), 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
candle holders in subheading 9405.50.40, HTSUS. The comments
submitted in response to this notice provided considerable
information regarding the "pertinent factors" (see above) related
to the principal use of the class or kind of goods to which the
goods considered in the proposed rulings belong. Based on this
information, Customs has concluded that the class or kind for
goods such as those under consideration is defined by the form or
shape of the article (e.g., bell-shape, similar to bell-shape,
flower pot shape, tulip or flower petal shape, cube or rectangle
shape, disk shape, bowl shape, and other shapes) and its size.
We have found there to be a clear distinction between glassware
used as candle holders and that used for general indoor
decoration based on the size of the articles, in the absence of
other pertinent evidence or information. Glassware with an
opening of 4 inches or less in diameter and a height or depth of
5 inches or less is used substantially more frequently as a
candle holder than for any other purpose, according to the
information we have obtained, and larger glassware is used
substantially more frequently for general indoor decoration. See
the July 15, 1998, edition of the CUSTOMS BULLETIN, Volume 32,
Number 28, page 12, wherein the March 25, 1998, CUSTOMS BULLETIN
notice was withdrawn.
The glass component of the article under consideration is in
the shape of a flower pot and is of clear green tinted glass. It
has a top diameter of 3 7/8", a diameter at the base of 2 3/4",
and a height of 3 1/2". This article is of a form and size,
based on the above-described information, which indicates its
inclusion in the class or kind of goods principally used as
candle holders. This is consistent with the pertinent factors
listed by the Courts for determining principal use (see above).
That is, in regard to physical characteristics, the small size of
the opening prevents easy access and the overall appearance of
the article provides, in the words of advertising literature for
similar articles, "[a] dramatic display for candles". In regard
to the other pertinent factors (expectation of ultimate
purchasers; channels of trade; environment of sale; and usage,
economic practicality of such usage, and recognition of the trade
of such usage), the evidence obtained from the public in response
to the March 25, 1998, Customs Bulletin notice supports principal
use of the articles as candle holders. Accordingly, the
glassware and metal stand is classified as non-electrical lamps
and lighting fittings in subheading 9405.50.40, HTSUS.
HOLDING:
The flower pot-shaped glassware with metal stand is
classifiable as other non-electrical lamps and lighting fittings
in subheading 9405.50.40, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division