CLA-2 RR:CR:GC 964842 AML
Mr. Peter J. Fitch
Fitch, King and Caffentzis
116 John Street
New York, N.Y. 10038
RE: Reconsideration of NY G85001; “Gondola” Hurricane
Candleholder; iron and glass candleholder
Dear Mr. Fitch:
This is in reply to your letter of December 28, 2000, to the Customs National Commodity Specialist Division, New York, on behalf of the Pomeroy Collection, Ltd., requesting reconsideration of New York Ruling Letter (“NY”) G85001, dated December 21, 2000, concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the “Gondola” Hurricane Candleholder (an iron and glass candleholder). NY G85001 classified the article under subheading 7013.99.50, HTSUS, which provides for glassware of a kind used for... indoor decoration or similar purposes... other glassware: other: other: valued over thirty cents but not over three dollars each. As you know, your request was forwarded to this office for reply. A sample, photograph, packaging materials and descriptive literature were provided for our consideration. We have reviewed NY G85001 and believe that the classification set forth is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY F89832 was published on May 15, 2002, in Vol. 36, No. 20 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
Based upon the information and sample provided, the “Gondola” Hurricane Candleholder consists of four components: a glass article, a pronged metal article, flame retardant, scented “botanicals,” and a scented candle. The large glass article resembles a vase and measures approximately 5 3/4 inches at the opening and 7 inches at the base. The body constricts to approximately 5 inches in diameter below the opening and increases in diameter toward the base. The glass article is approximately 8 1/4 inches in height.
The sample and photograph contain and depict a metal frame candleholder that rests on the lip of the glass article and suspends the candle approximately 6 inches below the opening of the glass article. The sample has two prongs and that depicted in the photograph has three prongs. In your letter, you state that the articles will be packaged together with a candle upon importation and that the metal frame candleholder will be the three-pronged model. The prongs suspend a candleholder: a concave, metal disk approximately 3 3/4 inches in diameter and 1/2 inch in depth.
Also contained in the package are “botanicals” – a potpourri of what appear to be dried flowers, buds and leaves which are described as pear scented and treated with a flame retardant chemical.
The final component is a scented candle that measures approximately 2 1/2 inches in height and 2 3/4 inches in diameter. You state that the candle will be packaged and imported with the other components.
In your request for reconsideration, you state that the article, “consisting of a glass container, a cast iron candle support, and a candle,” is packaged, imported and sold as a candleholder.
ISSUE:
Whether the composite article should be classified under subheading 7013.99.50, HTSUS, as a decorative glass article; or subheading 9405.50.40, HTSUS, as a candleholder?
LAW and ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). GRI 1, HTSUS, 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[.]” GRI 3(b) provides, in pertinent part, that “goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” GRI 3(c) provides that “when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.”
The applicable HTSUS provisions under consideration are as follows:
3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath
preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:
* * *
3406.00.00 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):
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each.
* * *
9405 Lamps and lighting fittings including searchlights
and spotlights and parts thereof, not elsewhere
specified or included; illuminated signs, illumi
nated nameplates and the like, having a perma
nently fixed light source, and parts thereof not
elsewhere specified or included:
9405.50 Non electrical lamps and lighting fittings:
Other:
9405.50.40 Other.
The four distinct articles are imported in the same package; hence, we are unable to resolve the classification of the articles at GRI 1. GRI 2 is not applicable here except insofar as it provides that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."
GRI 3 provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However,
when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a
more complete or precise description of the goods.
(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), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
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. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN (IX) to GRI 3(b) provides:
For purposes of this Rule, 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 but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not
normally be offered for sale in separate parts.
EN (VIII) to GRI 3(b) provides:
The factor which determines the essential character will vary as between different kinds of goods. It 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.
Pursuant to GRI 3(a), the article is a composite good prima facie classifiable under more than a single heading, i.e., headings 3307 (scented botanicals/potpourri), 3406 (candle), 7013 (the glass container), 8306 (the metal stand) and 9405, HTSUS (as a composite article comprising a candleholder).
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 C.F.R. §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).
Note 1(e) to Chapter 70, HTSUS, provides that the Chapter does not cover “lamps or light fittings . . . or parts thereof of heading 9405[.]” The General
ENs to Chapter 70 contain an identical provision. Thus, if it is determined that the essential character of the article is that of a candleholder, the article cannot be classified under heading 7013, HTSUS.
The EN to heading 9405, HTSUS, states that lamps and light fittings of this group can be composed of any material and use any source of light, including candles. In addition, EN 9405 states that this heading covers “in particular: (6) [c]andelabra, candlesticks, and candle brackets[.]”
We have previously considered the definitions of the terms used in the heading and EN. In Headquarters Ruling Letter (HQ) 957412, dated August 1,
1995, we stated that:
[T]hese rulings (HQ 954308 dated June 6, 1994, HQ 955935 dated May 16, 1994, HQ 953016 dated April 27, 1993, HQ 088742 dated April 22, 1991, and HQ 089054 dated August 2, 1991) held that the terms "candlestick", "candlestick holder", and "candle holder" are interchangeable. Candleholder has been defined as a candlestick,
Webster's II New Riverside University Dictionary, pg. 224 (1st ed. 1984), and as a holder for a candle; candlestick, The Random House Dictionary of the English Language, pg. 216 (1st Ed. 1983). Candlestick has been defined as a utensil for supporting a candle, whether elaborately made or in the common form of a saucer with a socket in the center, Webster's New International Dictionary, pg. 390 (2d ed. 1939). Reference to
lexicographic authorities is proper when determining the meaning of a tariff term. Hasbro Industries, Inc. v. U.S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v. U.S., 69 CCPA 128, 673 F.2d 1268 (1982).
The glass component of the article under consideration resembles a glass container or vase, neither of which is of the forms, shapes or dimensions considered in the March 25, 1998, CUSTOMS BULLETIN. However, it suspends what is designed and manufactured to be a metal candleholder. The promotional literature for the article indicates that the environment of sale of the article is one for candleholders, not general-purpose decorative glassware. Imported separately, the glass article would be classifiable within heading 7013, HTSUS, as a decorative glass article. This determination would hold true as well were the glass article imported as a potpourri vase, see HQ 955857, dated August 11, 1994. The glass component functions in a similar manner to the wrought iron pedestals in the rulings referred to below; its form indicates a use to suspend the candleholder within the article as well as function as a hurricane lamp by preventing wind or breeze from extinguishing the flame of the candle.
The four discrete articles make up a composite article for purposes of GRI 3(b). That is, they are, prima facie, classifiable in different headings (see
above), they are put together to meet a particular need or carry out a specific activity (that of serving as a decorative candle holder), and they are put up in a manner suitable for sale directly to users without repacking (see, e.g., Headquarters Ruling (HQ) 962090, dated June 11, 1999). Pursuant to GRI 3(b), classification of the composite article is determined on the basis of the component that imparts the essential character to the whole. EN Rule 3(b)(VII) 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 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. Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 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 171 F.3d 1370 (Fed. Cir. 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 in EN Rule 3(b)(VII) should also be considered, as applicable. In this case, we are unable to discern the “indispensable function” (Better Home Plastics, supra) of the article. While the argument can be made that the essential character of the composite good is to “hold” or “contain” a candle (as shown in the packaging and photograph provided) and that the metal component performs this function, the glass container serves the function of “suspending” the three-pronged, metal candleholder and “housing” the scented, flame retardant botanicals. Imported separately from any other article, the glass container, the glass container or vase would be classifiable under subheading 7013.99, HTSUS. Insofar as the other factors (quantity, bulk, weight and value) are concerned, the available evidence is not definitive. In accordance with GRI 3(b), we conclude that the glass and metal components of the article contribute equally to the essential character of the article, and resort (in accordance with GRI 3(c)) to the heading “which occurs last in numerical order among those which equally merit consideration.” Thus, pursuant to GRI 3(c), we conclude that the article is of the class or kind principally used as a non electrical lamp and lighting fitting in heading 9405, HTSUS, and is classifiable under that heading.
HOLDING:
Pursuant to GRI 3(c), the composite article will be classified within subheading 9405.50.40, HTSUS, as a candleholder.
EFFECT ON OTHER RULINGS:
NY G85001 is revoked. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division