CLA-2 RR:CR:GC 961842 PH
Mr. Lou Piropato
Daniel F. Young, Inc.
17 Battery Place
New York, N.Y. 10004-1101
RE: Glass stands; Reconsideration of NY 814327
Dear Mr. Piropato:
This is in reference to your request, on behalf of Centrum Corporation, dated May 6, 1998, that we reconsider New York Ruling Letter (NY) 814327 issued to you on November 30, 1995, in response to your letter of September 6, 1995, on behalf of Centrum, 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 certain glass stands. Samples were provided. We regret the delay.
FACTS:
The merchandise, as described in NY 814327, consists of two articles of circular clear flat glass, each with rounded edges. Item # Q9905 is approximately 3 3/8 inches in diameter and item # Q9910 is approximately 7 3/4 inches in diameter and has three 3/8 inch "feet" attached to its base. The sample of item # Q9910 generally meets the above description, except that there is a raised rim approximately 3/4 inch wide and 1/8 inch high around the outer part of the article. A catalogue you submitted describes the articles as "[g]lass [c]andle [h]olders" or "[c]lear [or appropriate color] [p]illar [h]olders" and one set of the articles is shown with a candle resting on each of three sizes of the articles. You state that the articles are made of ordinary glass and are not specially tempered. You contend that the articles, at the time of importation, are intended to be used as candle holders and are principally and actually used as such, and that the trade and the candle-buying public recognizes the articles as candle holders and not glass stands. You further contend that "[t]he expectation of the ultimate purchaser, the trade, the environment of sale (manner of advertisement and display, catalog description, etc.,) all indicate that the articles are dedicated to a sole use as candle holders."
In NY 814327, after noting that the unit value for the glass stands is not over $3 each and that the Customs laboratory had determined that the stands were not specially tempered, the articles were classified in subheading 7013.99.50, HTSUS, as other glassware of a kind used for toilet, office, indoor decoration or similar purposes.
ISSUES:
Whether glass stands are classifiable as other glassware of a kind used for 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:
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. 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 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 HTSUS 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.
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.
Note 1(e), Chapter 70, HTSUS, provides that "[t]his chapter does not cover ... [l]amps or lighting fittings ... of heading 9405." Therefore, if the articles are classifiable in subheading 9405.50.40, HTSUS, classification in subheading 7013.99.50, HTSUS, is precluded.
Subheading 9405.50.40, HTSUS, as applicable to the merchandise under consideration, is 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).
The first criterion looked to by the Courts in determining principal use (or "chief use" under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS) is the physical characteristics of the article. In this regard, to support principal use as a candle holder, we have held that glassware must have physical attributes making it particularly suited in some way to use as a candle holder (e.g., in a bell or similarly shaped article, 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; or the form of the glassware by itself or in combination with other materials makes "[a] dramatic display for candles") (see notices in the CUSTOMS BULLETINS of March 25, 1998, Volume 32, Number 12, page 32, and July 15, 1998, Volume 32, Number 28, page 12; Headquarters Ruling Letter 961866 dated July 29, 1998). The EN for heading 9405 supports this position in that the examples of "fittings" used with candles are "[c]andelabra, candlesticks, candle brackets" (EN 94.05). The glass stands have no physical attributes making them particularly suited for use as a candle holder; they are simply flat stands or platforms upon which any article, from a centerpiece or sculpture to a flower vase, as well as a candle, could be placed.
The only evidence you have provided regarding the other factors indicative of principal use is the catalogue illustrating the glass stands in use with candles. In regard to evidence establishing chief use (the TSUS counterpart of principal use, see above), the Courts have stated "... chief use is a question of actual fact which, in a case of this character should be established on the basis of positive testimony representative of an adequate geographical cross section of the nation" (L. Tobert Co., Inc., et al. v. United States, 41 CCPA 161, 164, C.A.D. 544 (1953); see also Western Stamping Corp. v. United States, 57 CCPA 6, C.A.D. 968 (1969); W.A. Gleeson v. United States, 58 CCPA 17, 22, C.A.D. 998, 432 F.2d 1403(1970), in which, in addition to quoting the Tobert decision, supra, the Court stated "[c]hief use envisions use by users, as a whole, of the type of commodity involved, and not merely individual use of the particular shipment in question." With regard to the catalogue illustrations of the glass stands with candles, we note that the Court in G. Heileman, supra, stated that "[i]n determining the classification of imported merchandise, the descriptions of the merchandise contained in marketing literature is relevant evidence, but it is not conclusive" (14 CIT at 621).
Because the general physical characteristics do not support principal use as a candle holder and in the absence of any evidence except the non-conclusive (see above) catalogue illustrations of the glass stands used with candles, we conclude that the glass stands are not of a class or kind principally used as candle holders. They are classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS.
This conclusion is consistent with NY 810500 dated May 30, 1995, which classified a clear glass stand approximately 5 inches in diameter with three 1/2 inch "feet" attached to its base in the same subheading. This is not inconsistent with the rulings you cited, HQ 957127 dated May 16, 1995, holding certain small glassware in the form of flower pots to be classifiable as candle holders, and HQ 957794 dated October 2, 1995, holding certain small "trilogy" and "tulip" glass articles with metal stands to be classifiable as candle holders. The physical attributes of the articles in those rulings do, in some way, make them particularly suited for use as candle holders. Furthermore, an exhaustive examination by this office of the other criteria for determining principal use found evidence supporting principal use of articles such as those in HQs 957127 and 957794 as candle holders (see notices in the CUSTOMS BULLETINS of March 25, 1998, Volume 32, Number 12, page 32, and July 15, 1998, Volume 32, Number 28, page 12; see also HQ 961866, cited above; HQ 960475 dated June 30, 1998; 960499 dated July 8, 1998; HQ 960962 dated July 15, 1998; HQ 961234 dated July 30, 1998; and HQ 961495 dated October 26, 1998).
HOLDING:
The glass stands are classified as other 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, in subheading 7013.99.50, HTSUS.
EFFECT ON OTHER RULINGS:
NY 814327 dated November 30, 1995, is AFFIRMED.
Sincerely,
John Durant, Director
Commercial Rulings Division