CLA-2 RR:CR:GC 961495 PH
Area Port Director
U.S. Customs Service
198 West Service Road
Champlain, NY 12919
RE: Internal Advice 29/97; large wine glass shaped candle
holder; candle poured in glassware; glassware for table,
kitchen, toilet, office, indoor decoration; principal use;
composite good; U.S. Additional Note 1(a); GRI 3(b); ENs
Rule 3(b)(VIII); 34.06; 3406.00.00; 7013.99.90; HQs 951021;
961866; NYs A85429; C87481; 884375; 888951; 889763; 890172
Dear Port Director:
This is in reference to your request of September 16, 1997,
forwarding a letter submitted by a Customs broker on behalf of an
importer for internal advice as to the classification under the
Harmonized Tariff Schedule of the United States (HTSUS) of a
large piece of glassware into which a candle is melted. A sample
was provided for our examination. We regret the delay.
FACTS:
The merchandise imported by Produits Aromatiques (identified
as # 80134) consists of glassware in the shape of a long-stemmed
wine glass into which is poured a scented candle. The glass
portion of the article is of clear glass and is approximately 14"
in overall height, the base is approximately 4 1/2" in diameter,
the stem is approximately 9" long, and the holder or container
portion of the glassware is approximately 5" in width and 3 1/2"
in depth. The wax is lavender in color and fills the holder or
container portion of the glassware to approximately 1/2" from the
top. There are three wicks in the wax. At the top of the stem,
the article is decorated with ribbons, cords, and artificial
flowers and leaves.
The cost (in Canadian dollars) of the glassware is stated to
be more than $20; that of the wax, wick, and scent - less than
$2, and that of the decoration - less than $5.
The subheadings under consideration are as follows:
3406.00.00 Candles, tapers and the like.
The 1998 general column one rate of duty for goods classifiable
under this provision is 1.2% ad valorem.
7013.99.90 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 $3 each: ... Other: ...
Valued over $5 each.
The 1998 general column one rate of duty for goods classifiable
under this provision is 7.2% ad valorem.
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.
ISSUES:
Whether the glassware with poured candle is classifiable as
candles, tapers and the like in subheading 3406.00.00, HTSUS,
other glassware of a kind used for indoor decoration or similar
purposes in subheading 7013.99.90, 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.
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).
EN Rule 3(b)(VIII) lists as factors to help determine the
essential character of such goods the nature of the materials or
components, their bulk, quantity, weight or value, and the role
of a constituent material in relation to the use of the goods.
Recently, there have been several Court decisions on
"essential character" for purposes of GRI 3(b). Better Home
Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996),
affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the
classification of shower curtain sets, consisting of an outer
textile curtain, inner plastic magnetic liner, and plastic hooks.
Customs had classified the sets on the basis of the textile
curtain under the "default rule of GRI 3(c)", after determining
that neither the relative specificity test nor the essential
character test was applicable (119 F.3d at 971). The CIT found
that the plastic liner performed the indispensable function of
keeping water inside the shower and therefore held that the
plastic liner imparted the essential character upon the set. In
its decision affirming the CIT decision, the CAFC stated:
The [CIT] carefully considered all of the facts, and, after
a reasoned balancing of all the facts, concluded that Better
Home Plastics offered sufficient evidence and argument to
overcome the presumption of correctness. The court
concluded that the indispensable function of keeping water
inside the shower along with the protective, privacy and
decorative functions of the plastic liner, and the
relatively low cost of the sets all combined to support the
decision that the plastic liner provided the essential
character of the sets. ... The court's decision did not
rely solely, or even hinge, on the indispensability of the
water-retaining function. The decision was substantially
based on the importance of the other functions as well as
the cost of the entire set. [119 F.3d at 971]
Other decisions in which the Court looked primarily to the
role of the constituent material in relation to the use of the
goods to determine essential character include Mita Copystar
America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997),
motion for rehearing and reconsideration denied, 994 F. Supp. 393
(CIT 1998), and Vista International Packaging Co., v. United
States, 19 CIT 868, 890 F. Supp. 1095 (1995).
The article in this case is a composite good prima facie
classifiable under two or more headings. That is, the candle
component is prima facie classifiable under heading 3406, HTSUS
(see EN 34.06 which provides that "[c]andles, tapers (including
ball or coiled tapers), etc., are usually made of tallow,
stearin, paraffin wax or other waxes [and] [t]he heading covers
these goods whether or not coloured, perfumed, decorated, etc."),
and the glassware component is classifiable as either glassware
of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes under heading 7013, HTSUS, or
other non-electrical lamps and lighting fittings under heading
9405, HTSUS.
Customs treatment of candles melted into a glass or other
container is distinguished from the treatment of candles imported
in a set with glassware (see, e.g., Headquarters Ruling Letter
(HQ) 961866 dated July 29, 1998). A candle melted in a glass jar
or other container is classified as a candle in subheading
3406.00.00, HTSUS, provided that the container is relatively
inexpensive (compare HQ 951021 dated April 9, 1992, and New York
Ruling Letters (NYs) 884375 dated April 16, 1993, 888951 dated
August 20, 1993, 889763 dated September 17, 1993, and 890172
dated September 22, 1993, all involving relatively inexpensive
containers, to NYs A85429 dated July 18, 1996, and C87481 dated
May 29, 1998, involving more expensive containers). For
relatively inexpensive containers this is consistent with the
criteria to be used to determine essential character for purposes
of GRI 3(b) in that the function of the candle is to provide
light while the article into which it is melted holds the candle;
the fact that the candle is melted into a relatively inexpensive
container militates against reuse of the holder component to hold
another candle or for some other use. For more expensive
containers this is also consistent with the criteria in that
reuse of the container is more likely for a more expensive
containers; also, in both Better Home Plastics decisions, the
Court took note of value as a factor in the determination of
essential character (916 F. Supp. at 1268; 119 F.3d at 971).
In this case, the cost of the container into which the
candle is melted is approximately ten times that of the wax and
wicks and, relative to other such articles, the cost of the
container is quite high. Accordingly, we conclude that the
essential character of the article is provided by the glassware
(the decoration on the stem of the article serves a subsidiary
function and also is of considerably less value than the
glassware component; therefore it does not provide the essential
character of the article).
The glassware component is classifiable in either heading
7013 or 9405, HTSUS. These headings, 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, 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 glassware in various forms contended to be principally
used as candle holders (see the March 25 and July 15, 1998,
editions of the CUSTOMS BULLETIN, Volume 32, Number 12, page 32,
and Volume 32, Number 28, page 12, respectively). The glassware
component of the article under consideration, although too large
to be practically used for the purposes its form would indicate
(as a wine glass), is not of the shape or form of any of the
articles considered in this review. However, the container part
of the glassware is similar in shape or form to the articles
found to be principally used as a candle holder (i.e., the shape
or form is particularly complementary to holding a candle, in
that 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, and the form of the glassware by itself or in combination
with other materials provides, in the words of advertising
literature for such articles "[a] dramatic display for candles").
That, together with the fact that a candle is melted into the
glassware component indicates principal use as a candle holder in
regard to the general physical characteristics criterion.
Insofar as the other criteria listed by the Courts for
determining principal use (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) are concerned, the fact that the candle is melted into the
glassware also supports principal use as a candle holder. The
expectation of an ultimate purchaser purchasing a relatively
fragile piece of glassware with a candle melted into it would be
to use the glassware as a candle holder; similarly, the economic
practicality would support such usage (removal of the candle and
use for some other purpose could result in breakage of the
relatively expensive glassware). There is no evidence as to the
channels of trade, environment of sale, and recognition of the
trade of usage, but given that a candle is melted into the
glassware, there is at least an indication that these criteria
would also support principal use as a candle holder.
Accordingly, we conclude that the glassware component of the
article is principally used as a candle holder. It is classified
as a non-electrical lamp and lighting fitting in subheading
9405.50.40, HTSUS.
HOLDING:
The glassware with poured candle is classifiable as an other
non-electrical lamp and lighting fitting in subheading
9405.50.40, HTSUS.
This decision should be mailed by your office to the Customs
broker no later than 60 days from the date of this letter. On
that date, 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
Commercial Rulings Division