CLA-2 RR:CR:GC 965642 AML
Port Director
U.S. Customs Service
1000 2nd Avenue
Seattle, WA 98104-1049
Re: Protest 3001-02-100071; combination sea lantern and base metal
stand
Dear Port Director:
The following is our decision regarding protest 3001-02-100071, filed on behalf of Ace Hardware Corporation, against your classification of a combination sea lantern and base metal stand under subheading 9405.50.40 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for, among other things, candleholders. Photocopies, invoices and the manufacturer’s specification sheet describing the article were provided for our consideration.
FACTS:
The articles at issue, referred to as “Shepherd’s Hook/Lantern Combination (Item # 7101629)” consist of a glass and metal lantern designed to hold a tea light candle and a five-foot tall, base metal stand designed to be inserted in the ground outside the home. The base metal stand has an “arm” that extends perpendicularly from the top to suspend the lantern and is adorned with a pineapple finial, also composed of base metal. The articles are imported together in the same container, packaged together for retail sale.
The articles were entered in January 2001, and the entries were liquidated on November 16 and December 7, 2001. The protest was filed on February 14, 2002. The products were classified at liquidation under subheading 9405.50.40, HTSUS.
ISSUE:
Whether the sea lantern with base metal stand is classifiable under subheading 8306.29.00, HTSUS, which provides for ornaments of base metal, or under subheading 9405.50.40, HTSUS, which provides for candleholders?
LAW and ANALYSIS:
Initially we note that the protest was timely filed and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).
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.”
Counsel for the protestant states that the products, invoiced as the “sea lantern with pineapple kd stand” (model no. 7101629), are General Rule of Interpretation (GRI) 3(b) sets for classification purposes that are classifiable (because counsel contends that the base metal stand imparts the essential character of the set) under heading 8306, HTSUS, which provides for ornaments of base metal. See the text and discussion of GRI 3(b), infra.
The applicable HTSUS provisions under consideration are as follows:
8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other
ornaments, of base metal; photograph, picture or similar frames, of base
metal; mirrors of base metal; and base metal parts thereof:
Statuettes and other ornaments, and parts thereof:
8306.29.00 Other.
* * *
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:
9405.50 Non electrical lamps and lighting fittings:
Other:
9405.50.40 Other.
The two distinct articles (the lantern and the stand) are classifiable under different headings and imported in the same package; hence, we are unable to resolve the classification of the combination of 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.
Pursuant to GRI 3(a), the article is a composite good prima facie classifiable under more than a single heading, i.e., 7013 (the sea lantern) and 8306, HTSUS.
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.
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).
The ENs to heading 8306, HTSUS, provide, in pertinent part, as follows:
(B) STATUETTES AND OTHER ORNAMENTS
This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non-metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.
It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.
The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:
(1) Busts, statuettes and other decorative figures; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc. (animals,
symbolic or allegorical figures, etc.); sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods of cast or forged metal (usually of wrought iron); knick-knacks for shelves or domestic display cabinets.
* * *
The group also includes, in the circumstances explained below, certain goods of the two following categories even though they have a utility value:
(A) Household or domestic articles whether they are potentially covered by specific headings for such goods (i.e., headings 73.23, 74.18 and 76.16) or by the “other articles” headings (e.g., in the case of articles of nickel and tin in particular). These household or domestic articles are generally designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. If, therefore, such decorated articles serve a useful purpose no less efficiently than their plainer counterparts, they are classified as domestic goods rather than in this group. On the other hand, if the usefulness of the article is clearly subordinate to its ornamental or fancy character, it should be classified in this group, for example, trays so heavily embossed that their usefulness is virtually nullified; ornaments incorporating a purely incidental tray or container usable as a trinket dish or ash-tray; and miniatures having no genuine utility value (miniature kitchen utensils) [italicized emphasis added].
The stands in question are more utilitarian than decorative in that they are designed, imported with, marketed and sold to suspend the sea lanterns. The decorative aspects of the article are secondary to the utilitarian function of the metal stand.
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 promotional literature for the article indicates that the environment of sale of the article is one for candleholders, not general-purpose decorative ware. The base metal stand/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 sea lantern.
There is a distinction between a “composite article” and a “set” for tariff purposes. The ENs to GRI 3 elaborate that the distinction is this: the components of “sets” are not only intended to work toward the same purpose; they are also related to one another. That is, they are used in conjunction with one another toward the fulfillment of that common purpose. By contrast, a composite article is one that consists of distinct articles grouped together to comprise a functional whole. See HQ 959515 dated May 27, 1997 for thorough analysis of the “composite article” versus “set” issue. See also the Informed Compliance Publication (“ICP”) entitled, “What Every Member of the Trade Community Should Know About: Classification of Sets under the HTS”, dated September 1999, available at www.customs.gov.
The two 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) and they are put together to meet a particular need or carry out a specific activity (that of serving as a decorative candle holder. 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, the “indispensable function” (Better Home Plastics, supra) of the article is imparted by the sea lantern. The argument can be made that the essential character of the composite good is imparted by the base metal stand (that comprises the bulk of the article in relation to size and role) that “holds” or “suspends” the sea lantern. 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 sea lantern that holds the candle is the focal point of the composite article. The observer would focus on the light of the candle and the light emitted by the candle. Thus, pursuant to GRI 3(b), we conclude that the sea lantern imparts the essential character of the article and 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:
The “sea lantern with base metal stand” (model # 7101629) is classifiable under subheading 9405.50.40, HTSUS, which provides for, inter alia, candleholders.
The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with Customs Form 19, should be mailed by your office to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this decision.
Sixty (60) days from the date of this decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, the World Wide Web at www.customs.treas.gov, and other public access channels.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division