CLA-2 RR:CR:GC 961495 PH

Area Port Director
U.S. Customs Service
198 West Service Road
Champlain, NY 12919

RE: Internal Advice 29/97; large wine glass shaped candle holder; candle poured in glassware; glassware for table, kitchen, toilet, office, indoor decoration; principal use; composite good; U.S. Additional Note 1(a); GRI 3(b); ENs Rule 3(b)(VIII); 34.06; 3406.00.00; 7013.99.90; HQs 951021; 961866; NYs A85429; C87481; 884375; 888951; 889763; 890172

Dear Port Director:

This is in reference to your request of September 16, 1997, forwarding a letter submitted by a Customs broker on behalf of an importer for internal advice as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a large piece of glassware into which a candle is melted. A sample was provided for our examination. We regret the delay.

FACTS:

The merchandise imported by Produits Aromatiques (identified as # 80134) consists of glassware in the shape of a long-stemmed wine glass into which is poured a scented candle. The glass portion of the article is of clear glass and is approximately 14" in overall height, the base is approximately 4 1/2" in diameter, the stem is approximately 9" long, and the holder or container portion of the glassware is approximately 5" in width and 3 1/2" in depth. The wax is lavender in color and fills the holder or container portion of the glassware to approximately 1/2" from the top. There are three wicks in the wax. At the top of the stem, the article is decorated with ribbons, cords, and artificial flowers and leaves.

The cost (in Canadian dollars) of the glassware is stated to be more than $20; that of the wax, wick, and scent - less than $2, and that of the decoration - less than $5.

The subheadings under consideration are as follows:

3406.00.00 Candles, tapers and the like.

The 1998 general column one rate of duty for goods classifiable under this provision is 1.2% ad valorem.

7013.99.90 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: ... Other: ... Other: ... Other: ... Valued over $3 each: ... Other: ... Valued over $5 each.

The 1998 general column one rate of duty for goods classifiable under this provision is 7.2% ad valorem.

9405.50.40 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; ...: ... Non-electrical lamps and lighting fittings: ... Other: ... Other.

The 1998 general column one rate of duty for goods classifiable under this provision is 6.3% ad valorem.

ISSUES:

Whether the glassware with poured candle is classifiable as candles, tapers and the like in subheading 3406.00.00, HTSUS, other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.90, HTSUS, or other non-electrical lamps and lighting fittings in subheading 9405.50.40, 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 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. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

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 a constituent material in relation to the use of the goods.

Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. Customs had classified the sets on the basis of the textile curtain under the "default rule of GRI 3(c)", after determining that neither the relative specificity test nor the essential character test was applicable (119 F.3d at 971). The CIT found that the plastic liner performed the indispensable function of keeping water inside the shower and therefore held that the plastic liner imparted the essential character upon the set. In its decision affirming the CIT decision, the CAFC stated:

The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets. ... The court's decision did not rely solely, or even hinge, on the indispensability of the water-retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set. [119 F.3d at 971]

Other decisions in which the Court looked primarily to the role of the constituent material in relation to the use of the goods to determine essential character include 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).

The article in this case is a composite good prima facie classifiable under two or more headings. That is, the candle component is prima facie classifiable under heading 3406, HTSUS (see EN 34.06 which provides that "[c]andles, tapers (including ball or coiled tapers), etc., are usually made of tallow, stearin, paraffin wax or other waxes [and] [t]he heading covers these goods whether or not coloured, perfumed, decorated, etc."), and the glassware component is classifiable as either glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under heading 7013, HTSUS, or other non-electrical lamps and lighting fittings under heading 9405, HTSUS.

Customs treatment of candles melted into a glass or other container is distinguished from the treatment of candles imported in a set with glassware (see, e.g., Headquarters Ruling Letter (HQ) 961866 dated July 29, 1998). A candle melted in a glass jar or other container is classified as a candle in subheading 3406.00.00, HTSUS, provided that the container is relatively inexpensive (compare HQ 951021 dated April 9, 1992, and New York Ruling Letters (NYs) 884375 dated April 16, 1993, 888951 dated August 20, 1993, 889763 dated September 17, 1993, and 890172 dated September 22, 1993, all involving relatively inexpensive containers, to NYs A85429 dated July 18, 1996, and C87481 dated May 29, 1998, involving more expensive containers). For relatively inexpensive containers this is consistent with the criteria to be used to determine essential character for purposes of GRI 3(b) in that the function of the candle is to provide light while the article into which it is melted holds the candle; the fact that the candle is melted into a relatively inexpensive container militates against reuse of the holder component to hold another candle or for some other use. For more expensive containers this is also consistent with the criteria in that reuse of the container is more likely for a more expensive containers; also, 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).

In this case, the cost of the container into which the candle is melted is approximately ten times that of the wax and wicks and, relative to other such articles, the cost of the container is quite high. Accordingly, we conclude that the essential character of the article is provided by the glassware (the decoration on the stem of the article serves a subsidiary function and also is of considerably less value than the glassware component; therefore it does not provide the essential character of the article).

The glassware component is classifiable in either heading 7013 or 9405, HTSUS. These headings, 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, 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 glassware in various forms contended to be principally used as candle holders (see the March 25 and July 15, 1998, editions of the CUSTOMS BULLETIN, Volume 32, Number 12, page 32, and Volume 32, Number 28, page 12, respectively). The glassware component of the article under consideration, although too large to be practically used for the purposes its form would indicate (as a wine glass), is not of the shape or form of any of the articles considered in this review. However, the container part of the glassware is similar in shape or form to the articles found to be principally used as a candle holder (i.e., the shape or form is particularly complementary to holding a candle, in that the opening turns outward so that it is large enough that the top of the glass, nearest to the candle flame, is not over-heated, and the form of the glassware by itself or in combination with other materials provides, in the words of advertising literature for such articles "[a] dramatic display for candles"). That, together with the fact that a candle is melted into the glassware component indicates principal use as a candle holder in regard to the general physical characteristics criterion.

Insofar as the other criteria listed by the Courts for determining principal use (expectation of ultimate purchasers; channels of trade; environment of sale; and usage, economic practicality of such usage, and recognition of the trade of such usage) are concerned, the fact that the candle is melted into the glassware also supports principal use as a candle holder. The expectation of an ultimate purchaser purchasing a relatively fragile piece of glassware with a candle melted into it would be to use the glassware as a candle holder; similarly, the economic practicality would support such usage (removal of the candle and use for some other purpose could result in breakage of the relatively expensive glassware). There is no evidence as to the channels of trade, environment of sale, and recognition of the trade of usage, but given that a candle is melted into the glassware, there is at least an indication that these criteria would also support principal use as a candle holder.

Accordingly, we conclude that the glassware component of the article is principally used as a candle holder. It is classified as a non-electrical lamp and lighting fitting in subheading 9405.50.40, HTSUS.

HOLDING: The glassware with poured candle is classifiable as an other non-electrical lamp and lighting fitting in subheading 9405.50.40, HTSUS.

This decision should be mailed by your office to the Customs broker no later than 60 days from the date of this letter. On that date, 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, Freedom of Information Act, and other public access channels.

Sincerely,


John Durant, Director
Commercial Rulings Division