CLA-2 RR:CR:GC 962047 PH
Mr. William Velasquez
Import Coordinator
Endar Corporation
43195 Business Park Drive
Temecula, California 92590-3697
RE: Cylinder-shaped glassware
Dear Mr. Velasquez:
This is in reference to your request to the Director, Customs National Commodity Specialist Division, New York, NY, dated June 18, 1998, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain articles of glass and floating candles. A sample was provided. Your letter was referred to this office for reply. In the preparation of this ruling, consideration was given to your supplemental submission of August 28, 1998, and the materials enclosed therewith. We regret the delay.
FACTS:
The merchandise under consideration consists of a cylinder-shaped article of glassware (plain clear glass, diameter of 4" with height of 8"). The glassware may be imported by itself, or with a floating candle, or with a paper pasted-on label showing the glassware with floating candles and describing it as a "Floating Candle Vase". The cost of the glassware is stated to be more than that of the floating candle, with the cost of the label being less than either.
You contend that in each configuration (importation of the glassware by itself, with a floating candle, or with the label), the merchandise should be classified in subheading 9405.50.40, HTSUS, as an other non-electrical lamp and lighting fitting. In the case of the glassware imported with the label, you argue that the label clearly demonstrates that you are marketing the article as a candle holder. You argue that the glassware imported by itself should also be imported in subheading 9405.50.40, HTSUS, "as [it] is identical to the above mentioned item."
In your August 28, 1998, letter, you further elaborate on why you believe the glassware to be of the class or kind of candle holders. To support your belief, you enclose copies of pages of catalogs stated to be "of various candle companies that market the cylinder candle holder as such." The catalog pages include two illustrations of cylinder-shaped glassware with candles. The first offers sets of "Cylinders w/Floaters" and a "Cylinder w/Floater" in various sizes (3" X 6", 7 1/2", or 9"). The second illustration does not describe the glassware, although it appears to be similar to that described in the preceding sentence. You also contend that the floating candle is not within the scope of the Antidumping Duty Order for petroleum wax candles from the People’s Republic of China (Notice of Antidumping Duty Order: Case A-570-504, Federal Register of August 28, 1986 (51 F.R. 30686) in that "it is technically designed to float and burn on water[;] it is not intended to be used on [a] surface."
ISSUES:
Whether the cylinder-shaped article of glassware, with a diameter of 4" and height of 8", imported by itself, with floating candle, or with a paper pasted-on label showing the glassware with floating candle, is classifiable as candles, tapers and the like in heading 3406, HTSUS, other glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS, or other non-electrical lamps and lighting fittings in heading 9405, 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 [and are] [m]ixtures, composite goods consisting of different materials or made up of different components, [or] goods put up in sets for retail sale, which cannot be classified by reference to [GRI] 3(a) [i.e., by 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 ...."
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 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)
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
Headings 7013 and 9405, 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 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 articles such as those under consideration. 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, 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 the glassware component of 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. See the July 15, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 28, page 12, wherein the March 25, 1998, CUSTOMS BULLETIN notice was withdrawn.
The glassware under consideration has a substantially greater height or depth than that of the glassware found to be principally used as candle holders in the March 25, 1998, CUSTOMS BULLETIN and its diameter is equal to the largest of the glassware found to be principally so used. However, the glassware is not of the shape or form of those articles. In this regard, we note that the shapes or forms found to be principally used as candle holders are generally shapes or forms somehow particularly complementary to candles (e.g., the opening turns outward as in bell-shaped glassware, so that it is large enough that the top of the glass, nearest to the candle flame, is not over-heated). In this case, the glassware is of a simple cylinder shape, with no indication in its shape or form that it is to be used as a candle holder.
Customs has taken the position that for glassware, the physical characteristics are the primary criterion determining the class or kind to which it belongs (see, e.g., Treasury Decision (T.D.) 96-7). However, in regard to the other pertinent factors (other than physical characteristics), 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), the evidence obtained from the public in response to the March 25, 1998, CUSTOMS BULLETIN notice supports principal use of the articles for indoor decoration and not as candle holders. We are not convinced that the attachment of a "paste-on" label illustrating floating candles with similar glassware overcomes this evidence (in this regard, we note that the label describes the article as a "Floating Candle Vase" (emphasis added)), nor do the two catalog illustrations (of cylinder glassware stated to be 3" in diameter, instead of 4" in diameter as is true of the glassware under consideration). We conclude that the cylinder shaped glassware (without floating candle and with or without the label) is classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS.
"Candles, tapers and the like" are classified in subheading 3406.00.00, HTSUS. EN 34.06 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." The floating candles are classified in subheading 3406.00.00, HTSUS. This is consistent with Headquarters Ruling (HQ) 961866 dated July 29, 1998.
If the cylinder shaped glassware and floating candle are packaged in a manner suitable for sale directly to users without repacking, they make up "goods put up in sets for retail sets" for purposes of GRI 3(b) (see EN GRI rule 3(b)(X)). If so, pursuant to GRI 3(b), classification of the set is determined on the basis of the component which imparts its essential character. 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 the constituent materials or components in relation to the use of the goods.
Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, 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). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999).
Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable. In this case, the "indispensable function" (Better Home Plastics, supra) of the set and the roles of the components thereof are not conclusive. That is, the function of the candle is to provide light and the role of the glassware is stated to be to hold the candle. However, as shown above, the glassware may also be used for other purposes. Further, a candle is consumed as it is used, so that the glassware component of the set could continue to be used, whether to hold another candle or for some other use, after the candle in the set is consumed.
The other factors listed in EN Rule 3(b)(VIII), however, may be used to establish essential character. Each of the factors (quantity, bulk, weight, and value) appears to support the glassware as being determinative of essential character. In this regard, we note that 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). Accordingly, we conclude that the essential character of the set is provided by the glassware. The set is classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS. This is consistent with HQ 961866, referred to above.
In regard to the applicability of antidumping duties to the candles under consideration, as you are apparently aware, "... 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)). Assuming that the candles in the article meet this description, they would be subject to antidumping duties. The Department of Commerce, determines whether a particular product is within the scope of an Antidumping Duty Order. An interested party may apply for a ruling as to whether a particular product is within the scope of an Order under the procedures provided in 19 CFR 351.225. Pursuant to 19 CFR 351.225(o), the Department of Commerce quarterly publishes in the Federal Register a list of scope rulings during the preceding quarter (see, e.g., November 4, 1998, Federal Register (63 F.R. 59544) Notice of Scope Rulings for July 1 - September 30, 1998, including several rulings on the scope of the subject Antidumping Duty Order).
HOLDING:
The cylinder-shaped article of glassware, with a diameter of 4" and height of 8", imported by itself, with floating candle, or with or without the paper pasted-on label showing the glassware with floating candle, is classifiable as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not over $3, in subheading 7013.99.50, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division