CLA-2 RR:CR:GC 960819 PH
Mr. William Velasquez
Import/Export Coordinator
Endar Corporation
43195 Business Park Drive
Temecula, California 92590-3697
RE: Bell-shaped glassware with metal stand; candle holder;
glassware for table, kitchen, toilet, office, indoor
decoration; principal use; essential character; composite
good; GRI 3(b); U.S. Additional Note 1(a); EN Rule 3(b)(IX);
Better Home Plastics Corp. v. United States, 916 F. Supp.
1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); HQs
956810; 957794; 960499; 960503; NY 888716
Dear Mr. Velasquez:
This is in reference to your request to the Area Director,
New York, New York, dated July 17, 1997, for a ruling as to the
tariff classification under the Harmonized Tariff Schedule of the
United States (HTSUS) of bell-shaped glassware with a brass
stand. A sample was provided. Your letter was referred to this
office for reply. We regret the delay in responding to your
request.
FACTS:
The merchandise under consideration consists of a bell-shaped (rounded bottom, cylinder shaped body, with a graduated
lip) article of glass with a metal stand. The glass has a
"crackled" appearance (i.e., it appears to have numerous small
cracks. The top diameter of the glassware is 4" and the inside
diameter of the body (not including the rim) is approximately 2
1/2". The height or depth of the glassware is approximately 4".
The stand, appearing and stated to be of brass, has four tines
attached to a ring so that the glassware may fit into the ends of
the tines. The ring portion of the stand is approximately 1 3/4"
in diameter and the stand is approximately 5" in height. You
describe the article as a "potpourri holder".
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.
7418.19.20 Table, kitchen or other household articles and
parts thereof, of copper; ...: Table, kitchen or
other household articles and parts thereof; ...:
... Other: ... Other: Of copper-zinc base alloys
(brass).
The 1995 general column one rate of duty for goods classifiable
under this provision is 3.1% 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.
ISSUE:
Whether the bell-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 copper in subheading
7418.90.20, 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. Pursuant to
GRI 3(b), when goods are prima facie classifiable under two or
more headings, classification shall be effected as follows:
(b) 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) [by reference to the heading which
provides the most specific description], shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
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 article under consideration, consisting of glassware
with a metal stand, with the glassware shaped so that it cannot
stand on its own (without being supported by the stand), is a
composite good (see, EN Rule 3(b)(IX), see also, e.g.,
Headquarters Ruling Letters (HQs) 956810 dated November 28, 1994,
and 957794 dated October 2, 1995). If GRI 3(b) is applicable
(see above), classification of a composite good is determined on
the basis of the component which gives the good its the essential
character.
In HQs 960499 dated July 8, 1998, and 960503 dated July 9,
1998, we considered the essential character of articles similar
to those under consideration. We concluded, on the basis of
cited Court decisions (Better Home Plastics Corp. v. United
States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed.
Cir. 1997); 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)), that the "indispensable function" of the articles was
holding or containing whatever was put in them, whether candles,
flowers, potpourri, or anything else, and that the component
which performed that function was clearly the glass component.
The same is true of the articles under consideration. For the
same reasons as in HQs 960499 and 960503, the LAW AND ANALYSIS
portion of which is incorporated by reference into this ruling,
we conclude that the essential character of these articles is
given by the glass component.
Subheadings 7013.99.50, 7418.90.20, 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 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, New York Ruling Letter (NY) 888716 dated August
20, 1993), 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.
The glass component of the article under consideration is
bell-shaped and made of relatively thin glass with a "crackle"
effect. It has a top diameter of 4", an inside diameter of
approximately 2 1/2", and a height or depth of approximately 4".
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 openings prevents easy
access and the "crackle" effect of the glass and the shiny brass
framework provide, 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. These articles are
classified as non-electrical lamps and lighting fittings in
subheading 9405.50.40, HTSUS.
HOLDING:
The bell-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