CLA-2 RR:CR:GC 962090 PH
Paula M. Connelly, Esq.
Middleton & Shrull
44 Mall Road, Suite 208
Burlington, MA 01803-4530
RE: "Photo cube" with votive-style candle; Revocation of NY C88496
Dear Ms Connelly:
This is in reference to your request, on behalf of FETCO International, Inc., dated July 23, 1998, that we reconsider New York Ruling Letter (NY) C88496 issued to you on June 19, 1998, in response to your letter of June 1, 1998, on behalf of FETCO, to the National Commodity Specialist Division in New York, in regard to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a "Votive Photo Cube". A sample was provided. We have reconsidered this ruling and now believe that it is incorrect. This proposed ruling sets forth the correct classification and the analysis therefor. We regret the delay.
FACTS:
The merchandise consists of a four-sided glass cube measuring 4 inches in height by 4 inches in width. Each side contains two glass panels, an inner one made of frosted glass and an outer one made of clear glass. The four side are connected by a silver-colored metal frame. Each side has an opening on top which enables a 3" X 3" photo to be inserted between the two glass panels. The bottom of the article has a metal lattice-like design with a centered, raised circle of metal over the metal cross-pieces which may be utilized to hold a candle. A two inch glass "votive-style" candle holder with a candle is included with the article. The base of the candle holder fits snugly into the raised circle of metal in the base of the glass cube.
In NY C88496, we held that the article is not a set put up for retail sale and the glass and metal cube, candle holder, and candle must be classified separately. We held the glass and metal cube to be classified in subheading 7013.99.50, HTSUS, as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes; the candle holder to be classified in subheading 9405.50.40, HTSUS, as other non-electrical lamps and light fittings; and the candle to be classified in subheading 3406.00.00, HTSUS, as candles, tapers and the like.
You state that all of the components of the article will be imported into the United States together, packaged in a retail box, ready for retail sale. You state that the metal component provides more than half of the value of the article (including the cube, candle holder, and candle), with the glass component (not including the candle holder) providing about 35% of the value. You state that the candle, when lit, illuminates the back of the photographs and does not provide lighting for the surrounding area. You contend that the article is a set put up for retail sale, as described in General Rule of Interpretation (GRI) 3, and that the essential character of the set is provided by the glass cube and that of the glass cube is provided by the metal component.
ISSUES:
(1) Whether the "photo cube" (without the candle holder and candle) is classifiable as a picture or similar frame of base metal in heading 8306, HTSUS, or glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS.
(2) Whether the "photo cube," consisting of the glass and metal cube, candle holder, and candle, comprise goods put up in sets for retail sale for purposes of GRI 3(b) and, if so, which component of the set provides its essential character.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the 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. Under GRI 2(a), any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. Pursuant to GRI 3(b), goods which are prima facie classifiable under two or more headings, and which are mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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).
The 1999 HTSUS headings under consideration are as follows:
3406 Candles, tapers and the like
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
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
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
EN GRI 3(b)(IX) states that "[f]or purposes of [GRI 3(b)], 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...." The glass and metal cube is not classifiable under GRI 1 (see below) and the glass and metal components thereof form a practically inseparable whole. The glass and metal cube is a composite good for purposes of GRI 3(b) and is classifiable according to the component which provides its essential character.
EN GRI 3(b)(X) states that:
For purposes of [GRI 3(b)], 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, clarifiable 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 repacking (e.g., in boxes or cases or on boards).
The glass and metal cube, candle holder, and candle are prima facie classifiable in different headings (respectively heading 7013 or 8306, heading 3406, and heading 9405). The articles are put up together to meet a particular need or carry out a specific activity (to display photographs), and, in their condition as imported, are packaged in a retail box, ready for retail sale. We note, in particular, the raised metal circle at the base of the cube which is configured so that the candle holder fits snugly into the center of the base of the cube. Therefore, the glass and metal cube, candle holder, and candle make up "goods put up in sets for retail sale" for purposes of GRI 3(b). The classification of the set is determined by the good of the set which gives it its essential character.
Initially, we will examine the essential character of the glass and metal cube composite good (see, in this regard, EN 83.06(C), indicating, although in a somewhat different context, that composite articles comprised, in part of picture frames of base metal, are to be classified in heading 8306 "when the essential character of the whole is given by the frames"). The term “essential character” is not defined in the HTSUS. According to EN GRI 3(b)(VIII), "[t]he factor which determines essential character will vary as between different kinds of goods[;] [i]t may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by 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. [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).
We believe that the indispensable function of the glass and metal cube is the decorative display of photographs. The glass is the component which is essential for this function. That is, the glass protects and allows the photographs to be viewed, whereas the metal serves the secondary purpose of holding the glass in place. Although the metal provides the form of the cube, the glass is essential to perform the "indispensable function" of the article, displaying photographs.
Of the criteria listed in EN GRI 3(b)(VIII) other than the roles of the constituent materials, bulk, quantity, and weight also support the conclusion that the glass component of the cube imparts its essential character. In regard to the remaining criterion (value), although the cost breakdown you provide indicates a greater cost for the metal component than the glass component, we note that in Better Home Plastics, supra, even though the relative value of the textile curtain was greater than that of the plastic liner, the plastic liner was held to impart the essential character (see also Headquarters Ruling Letters (HQs) 086166, dated April 9, 1990, and 952676 dated December 29, 1992, each of which held that the glass component of glass and metal boxes imparted the essential character, notwithstanding that the relative value of the metal component was greater than that of the glass component). We conclude that the glass imparts the essential character to the glass and metal cube.
Insofar as the question of which good provides the essential character in the set consisting of the glass and metal cube, candle holder, and candle is concerned, the criteria for the determination of the essential character of a set are the same as the criteria for determining the essential character of a composite good (see above, and EN GRI 3(b)(VI) through (VII)). After viewing the article with the candle lit, we concur with your conclusion that the candle "merely illuminates the ‘photo cube’ and provides a special lighting effect [but] does not illuminate the surrounding area." The "indispensable function" of the set remains the decorative display of photographs. As is true of the glass component in the glass and metal cube, the cube in the set is essential for this function, as it protects and allows the photographs to be viewed, whereas the candle and candle holder may support this function by illuminating and providing a special effect for the photographs, but are not essential for it. The essential character of the set is provided by the glass and metal cube composite good, which is classified in heading 7013, pursuant to the essential character analysis above. The set is classified as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS.
We note that "... scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks[,] sold in the ... shapes [of] tapers, spirals and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax filled containers" from the People’s Republic of China and classified in subheading 3406.00.00, HTSUS, are subject to antidumping duties (Notice of Antidumping Duty Order: Petroleum Wax Candles from the People’s Republic of China, Case A-570-504, Federal Register of August 28, 1986 (51 F.R. 30686)). The "votive-style" candle in the set would be covered by this antidumping order.
HOLDINGS:
(1) The "photo cube" (without the candle holder and candle) is a composite good for purposes of GRI 3(b); the essential character of the photo cube is provided by the glass component; and it is classified as glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS.
(2) The "photo cube," consisting of the glass and metal cube, candle holder, and candle, packaged in a retail box ready for sale upon importation, comprise goods put up in sets for retail sale for purposes of GRI 3(b); the photo cube provides the essential character of the set; and the set is classified as glassware of a kind used for indoor decoration or similar purposes, other glassware, other, other, other, valued over $0.30 but not over $3 each, in subheading 7013.99.50, HTSUS.
.
EFFECT ON OTHER RULINGS:
NY C88496 dated June 19, 1998, is REVOKED.
Sincerely,
John Durant, Director
Commercial Rulings Division