Internal Advice 4/99; decorative bell-shaped glass article with metal pedestal and candle

HQ 962624 May 12, 1999 CLA-2 RR:CR:GC 962624 PH CATEGORY: Classification TARIFF NO.: 7013.99.50 Port Director U.S. Customs Service 4477 Woodson Road St. Louis, MO 63134 RE: Internal Advice 4/99; decorative bell-shaped glass article with metal pedestal and candle Dear Port Director: This is in reference to your request of January 12, 1999, forwarding a letter submitted by counsel on behalf of Teleflora for internal advice as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a decorative bell-shaped glass bowl with metal pedestal and candle. A sample was provided for our examination. In the preparation of this ruling, consideration was given to the representations made by counsel in a meeting with representatives of this office on April 28, 1999. FACTS: The merchandise is called an "Autumn Elegance Bowl." It is made up of three parts, a wax candle, a bell-shaped glass bowl, and a three-legged wrought iron pedestal onto which the glass bowl may be placed. The sample metal pedestal is gold in color and consists of a ring of metal approximately 6" in diameter (inner) to which are attached "legs" which raise the ring approximately 4" above a surface and which are curled at the bottom end and have a leaf at the top. The bowl is of clear "crinkled" glass and has a shape like that of a bell, with a rounded bottom (so that it may not "stand" without support) and a turned out rim. It is approximately 3" deep and 8" wide (including the rim) or, not including the rim, 5" to 6 1/2" wide (depending on how the rim is measured). No candle was included with the sample, nor is one described. Promotional literature for the merchandise shows it with a large bouquet of flowers and standard tapered candles rising out of the top of the bouquet. A second illustration in the promotional literature shows the bowl in the pedestal and pears in the bowl with the statement: [T]he first course is for the eyes[.] What a treat for the family when they gather around this stunning centerpiece on Thanksgiving Day. They’ll love the rich array of fall flowers cascading over the crackled glass bowl with its base of sculpted autumn leaves. ... ISSUES: Whether the glass bowl, metal pedestal, and candle are 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. 8980, 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 glass component of the article under consideration is bell-shaped, which is one of the forms or shapes considered in the March 25, 1998, CUSTOMS BULLETIN. However, it is considerably larger than the size which we found, based on the review described above, indicates its inclusion in the class or kind of goods principally used as candle holders. Additionally, the promotional literature for the article indicates that the environment of sale of the article is one for general purpose decorative glassware, not candle holders. Also, the promotional literature describes the article as a "centerpiece", similar to the exemplars given in EN 70.13 for glassware for indoor decoration (i.e., "table-centres"). Accordingly, we conclude that the article is not of the class or kind principally used as a non-electrical lamp and lighting fitting in heading 9405, HTSUS, and it may not be classified under that heading. The glass bowl and metal pedestal, with the glassware shaped so that it cannot stand on its own (without being supported by the pedestal), make up a composite good (see, e.g., HQs 956810 dated November 28, 1994, 957794 dated October 2, 1995, and 960962 dated July 15, 1998). Pursuant to GRI 3(b), classification of the good is determined on the basis of the component which imparts the essential character to the whole. 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 article is to "hold" or "contain" the bouquet or fruit (as shown in the promotional literature), or whatever else is placed in the bowl. Clearly, the glass component performs this function, with the pedestal performing the subsidiary function of "holding" the glass bowl upright. Insofar as the other factors (quantity, bulk, weight, and value) are concerned, the available evidence is not definitive, but they do not appear to contradict the conclusion that the glass component provides the essential character of the composite good. If the glass bowl, metal pedestal, and candle are packaged in a manner suitable for sale directly to users without repacking, the composite good of the glass bowl and metal pedestal and the candle 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, as with the composite good of the glass bowl and metal pedestal, classification of the set of the glass bowl and metal pedestal composite good, and the candle is determined on the basis of the component which gives it its essential character. The criteria for determining essential character are the same as outlined above. 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 scent) 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 glass bowl and metal pedestal composite good 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 glass bowl and metal pedestal composite good. 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 dated July 29, 1998. For your information, "... 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. HOLDING: The glass bowl, metal pedestal, and candle make up a good put up in a set for retail sale (the set consisting of the composite good of the glass bowl and the metal pedestal put up with the candle) which 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. This decision should be mailed by your office to the party requesting internal advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director Commercial Rulings Division