Domestic Interested Party Petition, 19 U.S.C. §1516; Tariff Classification of Wickless Wax Objects from China

HQ H105015 December 7, 2010 CLA-2 OT:RR:CTF:TCM H105015 JRB CATEGORY: Classification TARIFF NO.: 9602.00.40 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