CLA-2 RR:CR:GC 960475 PH
Port Director
U.S. Customs Service
Post Office Box 3130
Laredo, Texas 78044
RE: Protest 2304-95-100241; flower pot shaped glassware; candle
holder; glassware for table, kitchen, toilet, office, indoor
decoration; principal use; U.S. Additional Note 1(a); United
States v. Carborundum Co., 63 CCPA 98 (1976); Stewart-Warner
Corp. v. United States, 3 Fed. Cir. (T) 20 (1984); Group
Italglass U.S.A., Inc. v. United States, 17 CIT 1177 (1993);
E.M. Chemicals v. United States, 923 F. Supp. 202 (1996);
Lenox Collections v. United States, 19 CIT 345 (1995); G.
Heileman Brewing Co. v. United States, 14 CIT 614 (1990); HQ
957127; NY 894791
Dear Port Director:
This is our decision on protest 2304-95-100241, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of a "Maceta Mediana" (medium flower pot). A
sample was provided. In preparing this decision, consideration
was also given to a supplemental submission dated May 27, 1997,
from counsel for the protestant.
FACTS:
The invoice description of the merchandise is "MACETA
MEDIANA" (medium flower pot). The protestant describes the
merchandise as "medium sized glass candle holders in the shape of
flower pots ... measur[ing] 5 1/2" high and ... across the top
... made of fairly thick glass ... and ... not hav[ing] holes or
any means of drainage." The sample meets this description. The
inside of the base is concave in shape (so that the middle of the
inside is raised). The importer states that it sells the
merchandise as candle holders and that its customers also sell
them as candle holders. The importer has provided packaging of
two different kinds of "candle rack[s]", in which items such as
the merchandise under consideration are displayed with "votive"
style candles (or a pillar candle, in one case) burning in them.
The merchandise was entered on October 21 and 31, 1994, with
classification claimed by the importer in subheading
9405.50.4000, HTSUS. The entries were liquidated on September
29, 1995, with classification in subheading 7013.99.5000, HTSUS.
The importer's counsel filed this protest with Customs on
December 27, 1995, against the classification of the merchandise.
Stating that a smaller version of the article was held to be
classifiable under subheading 9405.50.4000, HTSUS, in New York
Ruling (NY) 894791 dated March 15, 1994, and citing Headquarters
Ruling (HQ) 957127 dated May 16, 1995, the protestant contends
that the medium flower pots in the protested entries should be
similarly classified. The protestant argues that "... these
articles (in all three sizes) are designed, sold, and, to the
importer's knowledge, principally used as candle holders" and
should be classified accordingly.
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 1994 general column one rate of duty for goods classifiable
under this provision is 30% 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 1994 general column one rate of duty for goods classifiable
under this provision is 7.6% ad valorem.
ISSUE:
Whether the medium flower pots of glass are classifiable as
glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes in subheading 7013.99.50,
HTSUS, or other non-electrical lamps and lighting fittings in
subheading 9405.50.40, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
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.
Subheadings 7013.99.50 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 United
States 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, including a flower pot shape). In the March 25,
1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12,
Customs issued a notice under 19 U.S.C. 1625 proposing to modify
or revoke certain Headquarters and New York ruling letters,
including HQ 957127 (cited by the protestant and discussed
herein), 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) 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.
Thus, according to the above analysis, the flower pot shape
glassware under consideration, made of thick glass and having a
top diameter of 5 1/2" and a height of 5 1/2", is of a class or
kind principally used for indoor decoration or similar purposes
(i.e., its size, particularly the top diameter, precludes 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 size of the
opening permits easy access, the concave form of the interior of
the base could permit a candle to slip to the side of the
article, and the thickness of the glass permits use as a flower
pot (compare to HQ 957127, cited by the protestant, in which the
size (2" in diameter and either 2" or 3" in height) and thinness
of the glass were found to support principal use as a candle
holder; in regard to the absence of a drainage hole, considered
in HQ 957127, we note that it is incorrect that "[f]lower pots
necessarily have drainage holes" (see, e.g., Indoor Plants:
Comprehensive Care and Culture, Doris F. Hirsch (1977), pp. 178-179)). Insofar as NY 894791, cited by the protestant, is
concerned, the top diameter of the "flower pot candle holder"
involved in that case was 2 3/4", well within the dimensions
described above for the class or kind of goods principally used
as candle holders. Consistent with Customs conclusions (see
above) in regard to the March 25, 1988, Customs Bulletin notice,
NY 894791 remains in effect for the merchandise described
therein. 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, 1988, Customs Bulletin
notice, supra, supports principal use for indoor decoration and
not as a candle holder.
The packaging provided by the protestant, displaying
glassware such as that under consideration with candles burning
in them, may provide some evidence of the actual use of the
merchandise, and may address the expectation of ultimate
purchasers of the merchandise and the environment of sale. In
this regard, however, we note the statement of the Court in Group
Italglass, supra, that:
While heading 7010 is not an "actual use" provision,
evidence of the actual use of the imported goods could,
depending upon the quantum of proof, have some minimal
relevant probative value on the issue of principal use.
Similarly, evidence of the principal use of the specific
imports is relevant to the principal use of the class or
kind of goods to which the imported goods belong. Plainly,
evidence of the actual or principal use of the specific
imports standing alone could not, absent their constituting
the entire class or kind of goods under consideration, make
a prima facie case on the issue of principal use where the
controlling issue is the principal use of the class or kind
to which the merchandise belongs. [17 CIT at 1177, footnote
1.]
HOLDING:
The "flower pot vase" articles are classifiable as other
glassware of a kind used for indoor decoration or similar
purposes, valued over $0.30 but not more than $3 each, under
subheading 7013.99.50, HTSUS.
The protest is DENIED. 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,
Commercial Rulings Division