CLA-2 OT:RR:CTF:TCM H105015 JRB
Karen A. McGee
Barnes & Thornburg LLP
750 17th Street, NW
Suite 900
Washington, DC 20006-4675
RE: Domestic Interested Party Petition, 19 U.S.C. §1516; Tariff Classification of Wickless Wax Objects from China
Dear Ms. McGee:
This is in response to the domestic interested party petition filed by you on behalf of the National Candle Association (“NCA”), pursuant to section 516 of the Tariff Act of 1930, as amended (19 U.S.C. §1516). You state that the petitioner is an organization that represents “approximately 150 member companies” and that “[a] majority of NCA members manufacture, produce, or wholesale a like product in the United States.” In accordance with the requirements of 19 U.S.C. §1516(a)(2) and 19 C.F.R. §175.2-175.3, NCA is permitted to file this petition. At issue is the correct tariff classification of certain wickless wax objects from China under the Harmonized Tariff Schedule of the United States ("HTSUS").
Pursuant to 19 U.S.C. §1516 and U.S. Customs and Border Protection ("CBP") Regulations, 19 CFR 175.21(a), notice of receipt of the domestic interested party petition was published on January 5, 2010, in the Federal Register, Volume 75, Number 2. Six comments were timely submitted in response to this notice all supporting the petitioner’s position that merchandise should be classified in heading 3406, HTSUS, as candles. The commenters’ concerns are addressed below.
As an initial matter, one commenter notes that the classification analysis provided in the notice is never fully explained in the challenged rulings. We agree with the commenters that the challenged rulings never provided a detailed classification analysis. However, we felt that a classification analysis that would provide similar
results as the rulings would provide the public with guidance on how CBP may have come up with its prior position. Nonetheless, the analysis provided in the notice was not binding on the agency. Instead, this letter constitutes CBP’s official position on the classification of wickless wax objects as provided in 19 C.F.R. §175.22(b).
The petitioner specifically challenges the classification of wickless wax objects in heading 9602, HTSUS, in the following rulings:
NY L85725, dated June 30, 2005, classified a white solid wax cylinder with a scented fragrance that measures approximately 3” in height and 3” in diameter.
NY L85383, dated June 15, 2005, classified four wax items without wicks. Item 1 is described as a yellow colored solid wax molded cylinder measuring approximately 3” in height and 3” in diameter. The cylinder has a ¼” hole drilled through its center from top to bottom but does not contain a wick. Item 2 is a pink colored solid wax molded cylinder that measures approximately 2”x 2” x 6”. The cylinder has a ¼” hole drilled through its center from top to bottom, but does not contain a wick. Item 3 is an orange colored solid wax molded triangle that measures approximately 3” x 3” x 3”. The triangle has a ¼” hole drilled through its center from top to bottom, but does not contain a wick. Item 4 is a blue and white colored solid wax molded hexagon that measures approximately 1” on each side and 4” in height. The hexagon has a ¼” hole drilled through its center from top to bottom, but does not contain a wick.
NY L84761, dated June 2, 2005, classified a red solid wax cylinder with a scented fragrance that measures approximately 3” in height and 3” in diameter. The cylinder has a ¼” hole drilled through its center from top to bottom, but does not contain a wick.
NY G88343, dated March 26, 2001, classified three wax items without wicks. Item 1 is a yellow and lime colored solid wax cylinder that measures approximately 3” in height and 3” in diameter. The cylinder has a ¼” hole drilled through its center from top to bottom, but does not contain a wick. Item 2 is a cylindrical white wax candle holder embedded with fruits, cinnamon sticks and green leaves. The container measures approximately 4” in height and 4” across its widest point. Item 3 is a cylindrical white wax candle holder decorated with a flower, a turkey and rain drop stickers. The container measures approximately 4” in height and 4” across its widest point.
NY G87878, dated March 7, 2001, classified one wax object without a wick. Item CA23505B, a Basket weave-Look Wax Bowl, is a green colored wax bowl without a wick that measures approximately 3 ¼” in height and 8” in diameter.
NY G85945, dated January 16, 2001, classified one wax object without a wick. Item 6 is described as a wax bowl, which is a white colored scented wax bowl with no wick that measures approximately 4” in height and 10 ½” in diameter and is decorated with a flower design.
NY F82375, dated February 11, 2000, classified five wax objects without a wick. Item A is a purple colored solid paraffin wax cylinder that measures approximately 5 ½” in height and 3” in diameter. Item B is a white solid paraffin wax square pillar, approximately 6” in height and 3” wide. Item C is a brown solid paraffin wax block that is approximately 3” in height and 6” square. Item D is a pearl colored rounded wax piece molded in the shape of an oval approximately 1 ½” in height and 3 ½” in diameter. Item E is a white solid paraffin scented wax square block, approximately 3 ½” in height and 3” wide. This item has a hole drilled directly through the center, but does not contain a wick. The ruling indicates that further processing may be performed on the objects such as drilling a hole when needed, adding wicks, dipping, polishing, labeling and packaging.
NY F81245, dated January 11, 2000, classified a wax block that is scented and measures approximately 6 1/8” in height and 2 ¾” wide. The block is blue and white colored and does not have a hole drilled through it.
NY E89220, dated November 8, 1999, classified two wax objects. The first sample is described as a scented burgundy colored wax column that measures approximately 9” in height and 3 7/8” in diameter. There is a hole in the top and bottom of the column. The second sample is a pink colored wax column molded in the shape of a baluster that measures approximately 12” in height and 2 ¾” in diameter. The column has a hole in its top and bottom.
NY E87727, dated September 27, 1999, classified one wax object without a wick. Raw Material C is a white colored solid wax cylinder that measures approximately 5” in height and 5” in diameter. The cylinder has a ¼” hole drilled through its center from top to bottom.
NY E82227, dated May 18, 1999, classified a paraffin wax column molded in the shape of an orange colored 3” cube. The cube has a hole in the middle, but does not have a wick. The wax column may also be imported in various rectangular dimensions or in a round shape measuring either 3” in height or 6” and 6” in diameter.
NY E81505, dated May 12, 1999, classified a cog wheel which is described as a wax disc molded in the shape of a cog wheel and measures approximately 1 ½” in height and 1 ½” in diameter. The disc is scented and has a hole in the middle, but does not have a wick. The indicated use of the object is for aroma therapy.
NY D88246, dated March 12, 1999, classified three wax items. One sample is molded in the shape of a square pillar (approximately 3” square and 3 ½” in height). The other two items are molded in the shape of round columns (approximately 3” in diameter and 3” in height). All of the objects have a hole drilled directly through the center but do not have wicks. The importer indicated that further finishing would be performed in the U.S.
The NCA has challenged the aforementioned rulings claiming that CBP has incorrectly classified these objects in subheading 9602.00.40, HTSUS, by application of General Rules of Interpretation (“GRI”) 1. Instead, the NCA argues that classification in heading 3406, HTSUS, as a candle is more appropriate by application of either GRI 2(a) or 3(a).
Classification under the HTSUS is made in accordance with the GRIs. GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case 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 Candles, tapers and the like
9602 Worked vegetable or mineral carving material and articles of these materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin:
9602.00.40 Molded or carved articles of wax…
Chapter 33 Note 4, HTSUS, provides:
The expression “perfumery, cosmetic, or toilet preparations” in heading 3307 applies, inter alia, to the following products: scented sachets; odoriferous preparations which operate by burning; perfumed papers and papers impregnated or coated with cosmetics; contact lens or artificial eye solutions; wadding, felt and nonwovens, impregnated, coated or covered with perfume or cosmetics; animal toilet preparations.
GRI 2 provides:
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 entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
GRI 3 provides:
3. 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The following ENs are relevant to our discussion:
EN (II) to GRI 2(a) provides:
The provisions of this Rule also apply to blanks unless these are specified in a particular heading. The term " blank " means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part (e.g., bottle preforms of plastics being intermediate products having tubular shape, with one closed end and one open end threaded to secure a screw type closure, the portion below the threaded end being intended to be expanded to a desired size and shape).
Semi-manufactures not yet having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as "blanks ".
EN (VII) to GRI 2(a) provides:
Unassembled components of an article which are in excess of the number required for that article when complete are to be classified separately.
EN (II) to heading 9602, HTSUS, provides:
For the purposes of these materials, the expression “moulded articles” means articles which have been moulded to a shape appropriate to their intended use. On the other hand, materials moulded in the shape of blocks, cubes, plates, bars, sticks, etc., whether or not impressed during moulding, are not included.
One commenter argued that the wax objects, many of which are scented, could be classified in heading 3307, HTSUS, which provides for perfumery, cosmetic or toilet preparations, not elsewhere specified or included and room deodorizers. The commenter contends that the wax objects are similar to the items listed in the exemplars in note 4 to Chapter 33, HTSUS, which defines the phrase “perfumery, cosmetic or toilet preparations”. The commenter then concludes that the objects could be described by subheading 3307.49.00, HTSUS, which provides for room deodorizers.
As an initial matter, the commenter’s interpretation of the heading text for heading 3307, HTSUS, does not take into account the presence of the semicolon in the heading. The heading describes two different groups of merchandise. The first group of products are described as “[p]re-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included” and note 4 to Chapter 33, HTSUS, provides a list of exemplars indicating the type of merchandise that is described by “perfumery, cosmetic or toilet preparations.” The second group of products provided for in heading 3307, HTSUS, are room deodorizers that may or may not contain perfumes or disinfectants. The commenter asserts that the product is similar to the type of products listed in note 4, to Chapter 33, HTSUS, but then argues that they are described as room deodorizers. Since the commenter’s argument in support of its conclusion indicates that the products are described by language in the first clause but then in its conclusion indicates that this product should be classified in a subheading using the language of the second clause in heading 3307, HTSUS, we will determine whether the product is described by either of those clauses.
The commenter contends that the phrase “perfumery, cosmetic or toilet preparations” as provided in heading 3307, HTSUS, and defined in note 4 to Chapter 33, HTSUS, describes the wax objects. Note 4, to Chapter 33, HTSUS, as provided above, lists a group of products that are not meant to be exhaustive and describes a class or kind of goods that can be classified in heading 3307, HTSUS. Since the language of note 4 to Chapter 33, HTSUS, includes the term inter alia, which means among other things, in its text we must look to the rule of ejusdem generis to determine the scope of heading 3307, HTSUS. Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrases, the general word or phrase is held to refer to things of the same kind as those specified. With respect to classification analysis, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms. See Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994).
The products listed in the exemplars are scented sachets, odoriferous preparations which operate by burning, perfumed papers and papers impregnated or coated with cosmetics, contact lens or artificial eye solutions, wadding, felt and nonwovens with perfume or cosmetics, and animal toilet preparations. Applying this rule to the list of exemplars provided for in note 4 to Chapter 33, HTSUS, we find that all of these products are commonly found in bathrooms, powder rooms, or other areas in which a person would go to engage in personal grooming or to dress. The exemplars are all products that a person would use to maintain their personal hygiene or personal appearance. Upon reviewing the relevant rulings there is no indication that any of the products that were the subject of the challenged rulings would be of the class or kind of products used to maintain one’s personal hygiene or appearance. Therefore, we find that heading 3307, HTSUS, does not describe the merchandise.
The commenter contends that the scented wax blocks can provide scent for a room. The second clause of heading 3307, HTSUS, provides for room deodorizers. The word “deodorizer” is not defined in the HTSUS. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The word “deodorizer” is defined as “[t]o deprive of odour, esp. of offensive or noisome odour; to take away the (bad) smell of.” See Oxford English Dictionary, 2nd Ed. (1989). The EN to heading 33.07 provides that prepared room deodorizers “consist essentially of substances (such as lauryl methacrylate) which act chemically on the odours to be overcome or other substances designed to physically absorb odours by, for example Van der Waal’s bonds.” However, the common meaning of the term deodorizer read in conjunction with the EN and the heading text is referring to preparations that act to disperse fragrance or other chemical preparations into the air to either mask or chemically remove odor causing molecules from the air. However, there is no indication or information in the challenged rulings for us to determine that the product has sufficient concentrations of fragrance to function as a room deodorizer. Therefore, we do not believe that this language appropriately describes the merchandise.
Heading 3406, HTSUS, provides for “candles, tapers, and the like”. The Oxford English Dictionary, 2nd Ed. (1989), defines the word “candle” as “[a] source of artificial light, consisting of a usually cylindrical body of wax, tallow, spermaceti, or other solid fat, formed round a wick of cotton or flax, formerly also, of the pith of a rush.” This definition requires that a candle provide light and that it be made of two different materials: (1) wax or certain other substances, and (2) a wick. A taper is defined as a “[a] wax candle, in early times used chiefly for devotional or penitential purposes; now spec. a long wick coated with wax for temporary use as a spill, etc.” Id. In addition to candles and tapers, heading 3406, HTSUS, also includes the phrase “and the like.” We find that this phrase requires us to apply the principle of ejusdem generis as described above. In this instance both of the eo nomine terms describe products with wicks and wax that act as sources of artificial illumination. Thus, this heading provides for items that have wicks and wax that function as a source of artificial light.
Applying this definition to the products in the challenged rulings, one component of a candle that is missing is the wick. The way that a candle works is that a user lights the wick which begins to burn and melt the wax below. As the wax melts it is sucked up to the flame through the wick via capillary action. The liquid wax slows the rate at which the wick burns creating a source of light that is able to last for a longer period of time than simply burning a wick. Without the wick, a candle or taper is unable to provide light. Thus, classification as a candle of heading 3406, HTSUS, by application of GRI 1 is not possible because none of the challenged products meet the definition of a candle or taper since they lack an essential component in the product that gives it the ability to provide illumination.
Heading 9602, HTSUS, provides for “molded or carved articles of wax, of stearin… not elsewhere specified or included[.]” The EN to heading 9602, HTSUS, provides that the term molded articles “means articles which have been moulded to a shape appropriate to their intended use” and excludes “materials moulded in the shape of blocks, cubes, plates, bars, sticks, etc.” The terms “molded” or “carved” are not defined in the HTSUS thus we look to the Oxford English Dictionary, 2nd Ed. (1989), which defines the word carve as “[t]o cut: formerly the ordinary word that action in all its varieties.” The common meaning of the word “mold” is “[t]o shape (fluid or plastic matter) into a required shape by pouring or pressing into a hollow form or matrix; to press or cast in or into a particular form”. See Oxford English Dictionary, 2nd Ed. (1989).
All of the wax objects that are the subject of this petition are in small molded shapes such as blocks, cylinders, columns, triangles, or bowls that can be used as decorative items. They have been shaped into smaller usable objects for use as decorative items or for further production as candles. The vast majority of the products that are the subject of this petition have had a hole drilled into them, which is further evidence that these objects have been carved because the object has been cut by drilling a hole through it. In addition, several of the products are in the shapes of bowls or candle holders. Hence, the wax objects have been molded or carved and in addition they are not described elsewhere in the HTSUS. Therefore, they are described by the terms of heading 9602, HTSUS, by application of GRI 1.
The petitioner avers that these wax objects cannot be classified in heading 9602, HTSUS, because each item is not specifically enumerated in the EN for heading 96.02. The EN for heading 96.02 provides a list of exemplars of products that are to be classified in this heading. However, the EN to heading 96.02 provides at the chapeau of the exemplars the phrase “this group includes” which indicates that the list is illustrative and not exhaustive. The list of examples indicates that all of these products are forms that have been cut or molded into a different shape from their original primary or bulk form which is consistent with our interpretation of the meaning of molded or carved articles.
It has long been the position of CBP that the ENs cannot narrow the scope of the heading text. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989); Headquarters Ruling Letter (HQ) H027186, dated March 30, 2010 and HQ H046780, dated March 10, 2009. In addition, the Conference Report to H.R. 3, which was later incorporated into the Omnibus Trade and Competitiveness Act of 1988 (the legislative vehicle enacting the Harmonized Tariff Schedule of the United States), also provides that the ENs were “generally indicative of proper interpretation of the various provisions of the Convention… Thus, while they should be consulted for guidance, the Explanatory Notes should not be treated as dispostive.” See H.R. REP. No. 100-576. Therefore, we find that simply because these wax objects are not specifically enumerated as an example in the EN does not preclude them from classification in this heading.
The petitioner also contends that the EN to heading 96.02 specifically excludes objects that are simply carved into blocks, cubes, plates, bars, sticks, etc. from being classified in heading 96.02. However, we interpret this language to mean that wax in its bulk or primary form is excluded from this heading. The EN to heading 96.02 as noted above provides that the phrase “molded articles” means articles that have been molded into a shape fit for their intended use and that certain generic shapes such as blocks or
cubes are not described by this heading. The definition of the word “block” is “[a] bulky piece of any substance.” See Oxford English Dictionary, 2nd Ed. (1989). Wax in its bulk form often comes in very large blocks, cubes, sticks, or plates. Thus applying this interpretation of the exclusionary language within the context of the EN and common industry practice, once the larger blocks or plates are molded into smaller cubes or cylinders, the product is classifiable in heading 9602, HTSUS, because it has been molded or cut from its original block or bulk form.
Moreover, the petitioner’s interpretation would improperly narrow the clear and unambiguous language of the heading text. The Court of Appeals for the Federal Circuit has held that the ENs cannot improperly narrow the scope of a heading when the language of the heading is clear on its face. See Archer Daniels Midland Co. v. United States, 561 F.3d 1308, 1315 (2009); Airflow Technology Inc. v. United States, 524 F.3d 1287, 1293 (2007). As we have noted above, the words “molded” or “carved” are clear in their meaning and narrowing the scope of the heading to only objects that are molded into certain shapes would contradict the instructions provided to us in Archer Daniels Midland and Airflow Technology. Therefore, we believe that the EN to heading 96.02 as quoted above must be interpreted to mean that the heading describes all goods that have been molded or carved from their original or bulk product and are not provided for elsewhere in the HTSUS.
One commenter argues that CBP’s interpretation of the EN to heading 96.02 as well as the heading text is overly broad because our interpretation would include candles. However, the heading would not describe candles because a candle is a molded or carved piece of wax that is described elsewhere in the HTSUS.
Lastly, one commenter asserted that heading 9602, HTSUS, does not completely describe the merchandise that was the subject of the challenged rulings because some of the items are scented and that the heading does not describe scented wax objects. The heading text and the ENs do not include language indicating that a molded or carved article of wax cannot be molded or carved from a scented piece of wax. Therefore, we do not find this to be a persuasive argument.
The petitioner and commenters contend that the wax objects are either unfinished goods or blanks, or that the objects are unassembled goods by application of GRI 2(a). GRI 2(a) allows for the classification of unfinished goods to be classified as a finished good. In particular it requires that the unfinished goods, at the time of importation, have the essential character of the completed article. The courts have addressed the meaning of essential character with respect to GRI 2(a) in prior cases. See The Pomeroy Collection,, Ltd. v. United States, 559 F. Supp 2d 1374 (Ct. Int’l Trade 2008); Filmtec Corp. v. United States, 293 F. Supp. 2d 1364 (Ct. Int’l Trade 2003); and Baxter Healthcare Corp. of Puerto Rico v. United States, 22 C.I.T. 82 (1998). The court has specifically noted that the focus of the essential character analysis for purposes of GRI 2(a) is whether or not the identity of the article to be made from the imported good is fixed or certain at the time of importation. See Baxter Healthcare Corp., 22 C.I.T. at 101. Following this directive, the longstanding position of CBP is that the term "essential character" for purposes of GRI 2(a) means the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. The essential character for purposes of GRI 2(a) is determined on a case-by-case basis based on the nature of a given article. See HQ H013671, dated January 16, 2009.
As noted above a candle is designed to provide light and this is done through the use of two components, wax and a wick. In both the NCA’s petition to us and on its website they indicate that both are necessary for illumination. On page 11 of the petition they state that the wax “provides the fuel for burning” and that “[a] wick by itself burns and is consumed too quickly to be useful for illumination.” The NCA also states that “it's the wick that makes the candle.” Thus, the two essential components necessary for a candle are the wax and the wick. All of the wax articles in the challenged rulings do not contain a wick; which means that they are unable to provide illumination. The inability of these objects to provide illumination means that they do not possess the essential character of a candle and therefore they cannot be classified as a candle in heading 3406, HTSUS, by application of GRI 2(a).
Several commenters asserted that the wax provides the essential character of a candle because the wax accounts for the majority of the cost of the finished candle, the wax provides the fuel for the candle, and the wax is the portion of the candle that influences consumer candle purchases because of the wax’s smell or shape. While cost is an important component in determining the essential character of an item pursuant to GRI 3(b), it is of much lesser importance in the GRI 2(a) context. In The Pomeroy Collection,, Ltd. v. United States the Court of International Trade stated that the “’essential character’ under GRI 2(a) is whether the identity of the complete article to be made from the incomplete imported goods is “fixed and certain” at the time of importation…” 559 F. Supp 2d at 1387. Thus, the cost of a component has no relation to the determination of the essential character at the GRI 2(a) level. The analysis instead must focus on whether the unfinished article is in such a level of manufacture that it is clear that it will be a particular finished product. Therefore, we find the commenters’ assertions regarding the wax costs unpersuasive because at the time of importation it is unclear that these products will become candles.
Also, if CBP were to adopt the position of the petitioner and the commenters, CBP would have to classify all pieces of wax outside of the primary or bulk form as candles in heading 3406, HTSUS, because there is no way to distinguish between a small piece of wax that will become a candle and another piece of wax that someone may use for other purposes.
The petitioner cites HQ H012690, dated July 27, 2007, in support of their argument for classification in heading 3406, HTSUS, by application of GRI 2(a). In particular the petitioner cited language from that ruling in which CBP classified a pizza cutter wheel as a finished hand tool by application of GRI 2(a) based on fact that the cutter wheel provided the size, shape, and dull cutting edge that was the same as the finished pizza cutter. The petitioner and the commenters argue that the wax objects provide the candle with the feature that consumers most identify with, the shape or look of the candle. While the size and shape are important in a GRI 2(a) analysis, the item providing the size and shape also must be able to carryout the basic function of the finished item. A pizza cutter’s essential function is to cut pizza and this cutter wheel was the portion of the tool that defines essential character of a pizza cutter. The plastic handle that is added after importation is not essential in carrying out the function of the pizza cutter. Instead, it only makes the cutter wheel easier to use.
This interpretation is also consistent with Sharp Microelectronics Technology, Inc. v. United States, 932 F. Supp 1499, 1504-05 (Ct. Int’l Trade 1996) in which the Court of International Trade (CIT) rejected an argument that display glass, used in the manufacture of an output unit for an automatic data processing (ADP) machine, had the essential character of that output unit because the glass “is what leaps to mind when reference is made to an output unit…” Id. at 1505. The CIT held that the glass lacked a number of essential components such that the glass on its own did not impart the essential character of an output unit for an ADP machine. Id.
Furthermore, EN II to GRI 2(a), which is quoted in full at the beginning of this decision, provides a definition for a type of unfinished item known as a blank. In that discussion it notes as an example bottle preforms, which have all of the essential materials of a plastic bottle but also the threads for a screw top which identify the object as a nascent bottle. The bottle preforms do not require the addition of essential components to make the bottle a bottle. Instead the only processing that is occurring after importation is the expansion of the bottle into the desired shape.
These objects are unlike the bottle preforms cited in the EN because they require the addition of essential materials. Instead, the objects are similar to the display glass in Sharp Electronics because while they provide the shape and identifying feature of the product, they require the addition of essential components, that when combined, provide the very essence of that product. These wax objects require the addition of a wick so that the entire product has the ability to provide illumination. The wax alone cannot provide illumination; it is, as noted above, the fuel for the candle but it needs the wick to maintain a fire. As a result, classification of these wax objects as an unfinished candle by application of GRI 2(a) is inappropriate. This conclusion is further supported by the EN to GRI 2(a) which provides that GRI 2(a) is unlikely to apply to products described in sections I through VI (which includes heading 3406) of the HTSUS.
Finally, the petitioner also asserts that the wax objects are unassembled articles. The petitioner contends that GRI 2(a) provides for classification of unassembled articles as if they were in their assembled state. We first note EN (VII) to GRI 2(a), which we have provided above, indicates that, as a general rule for an article to be classified by application of GRI 2(a) as an unassembled good all of the unassembled parts must be included in the shipments. However, there is no indication in any of the challenged rulings that the wax objects were being imported with wicks. In NY F82375, dated February 11, 2000, and NY D88246, dated March 12, 1999, CBP noted that the importers expressed an intention to make candles out of the wax objects but even in those rulings there are no statements indicating that wicks were imported with the wax.
In addition, the EN to GRI 2(a) also indicates that unassembled goods are usually presented unassembled because it is easier to ship the goods unassembled. Shipping a candle without a wick does not make the candle easier to transport. Therefore, because there are no wicks imported with the wax objects we cannot say that the wax is an unassembled candle. See HQ H019057, dated January 28, 2008 for a similar analysis.
Alternatively, both the petitioner and one of the commenters argue that classification is appropriate in heading 3406, HTSUS, by application of GRI 3(a), as a more specific provision than headings 3307 or 9602, HTSUS. GRI 3 can only apply when classification cannot be performed by application of GRI’s 1 and 2 and the good is prima facie classifiable in two or more headings of the HTSUS. We have already demonstrated that headings 3307 and 3406, HTSUS, do not describe the goods. In addition, we have demonstrated that only one heading describes the merchandise, heading 9602, HTSUS, at the GRI 1 level. Therefore, classification by the specificity rule of GRI 3(a) is not possible because the merchandise is not prima facie classifiable in two or more headings and classification is possible by application of GRI 1.
In conclusion, CBP continues to believe that the wax objects that are the subject of the challenged rulings are appropriately classified in heading 9602, HTSUS, by application of GRI 1. This letter also officially notifies the petitioner that CBP correctly classified the wax objects described in NY L85725, dated June 30, 2005; NY L85383, dated June 15, 2005; NY L84761, dated June 2, 2005; NY G88343, dated March 26, 2001; NY G87878, dated March 7, 2001; NY G85945, dated January 16, 2001; NY F82375, dated February 11, 2000; NY F81245, dated January 11, 2000; NY E89220, dated November 8, 1999; NY E87727, dated September 27, 1999; NY E82227, dated May 18, 1999; NY E81505, dated May 12, 1999; and NY D88246, dated March 12, 1999, in heading 9602, HTSUS, by application of GRI 1 and more specifically under subheading 9602.00.40, HTSUS, as molded or carved articles of wax by application of GRIs 6 and 1.
Pursuant to 19 U.S.C. § 1516, the petitioner may file notice of its desire to contest this decision not later than thirty days from the date of issuance of this letter. See 19 C.F.R. § 175.23.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division