CLA-2 RR:CR:GC 962414 PH
Daniel J. Gluck, Esq.
Serko & Simon, LLP
One World Trade Center - Suite 3371
New York, N.Y. 10048
RE: Octagonally-shaped glassware; sorbet dish
Dear Mr. Gluck:
This is in reference to your request to the Director, Customs National Commodity Specialist Division, New York, NY, dated November 17, 1998, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain articles of glass. Samples were provided (although usable for purposes of classification, two of three samples were broken in transit). Your letter was referred to this office for reply. We regret the delay.
FACTS:
The merchandise under consideration consists of eight sided, clear glass articles. You state the articles vary in size, with the diameter being between 2" and 4" and the height between 2" and 2 1/2". The larger articles have straight sides, and are rounded slightly to a flat base, approximately 1" less in diameter than the top of the article. Approximately half of the height of the smaller articles is composed of straight sides, then the sides turn inward to decrease the diameter to approximately half that of the top of the articles, and a smaller eight-sided bottom portion is formed, again with a flat base. The samples are within this size range, except that the diameter of the larger articles is 4 1/2", and they have candles melted into them, although you state that the articles will be imported empty and only after importation will wax be melted into them (for the tariff treatment of candles melted into a glass or other container, see, e.g., Headquarters Ruling Letters (HQs) 961866 dated July 29, 1998, and 961495 dated October 26, 1998). You state that the cost of the imported merchandise is less than $.50 per piece.
On the basis of Note 1(e), Chapter 70, HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) for heading 9405, HTSUS, and HQs 953016 dated April 28, 1993, 089054 dated August 2, 1991, and 088742 dated April 22, 1992, you contend that the articles are of the class or kind of lamps and lighting fittings classifiable in subheading 9405.50.40, HTSUS.
ISSUES:
Whether the octagonally-shaped "sorbet" glass articles are classifiable as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes in heading 7013, HTSUS, or 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.
The 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).
The HTSUS headings under consideration are as follows:
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
Initially we note, as you point out, that Note 1(e), Chapter 70, HTSUS, provides that Chapter 70 does not cover lamps or lighting fittings of heading 9405, HTSUS. Therefore, if the articles are classifiable as lamps or lighting fittings of heading 9405, they may not be classified in heading 7013, HTSUS.
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 larger articles (samples with a diameter of 4 1/2") are outside the size parameters for the glassware found to be principally used as candle holders in the July 15, 1998, CUSTOMS BULLETIN and they are not of the shape or form of those articles. In this regard, we note that the shapes or forms found to be principally used as candle holders are generally shapes or forms somehow particularly complementary to candles (e.g., the opening turns outward as in bell-shaped glassware, so that it is large enough that the top of the glass, nearest to the candle flame, is not over-heated). In this case, there is no indication in the shape or form of the articles that they are to be used as candle holders. They are of the class or kind of articles used for general indoor decoration (see EN 70.13, listing as glassware of heading 7013, HTSUS, article such as containers for pins, pen-trays and ashtrays). Imported empty, the larger articles are classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.50, HTSUS.
The smaller article is within the size parameters of the glassware found to be principally used as candle holders although, as noted above, it is not of the shape or form of the articles found to be principally used as candle holders in the July 15, 1998, CUSTOMS BULLETIN. Customs has taken the position that for glassware, the physical characteristics are the primary criterion determining the class or kind to which it belongs (see, e.g., Treasury Decision (T.D.) 96-7; in regard to the other criteria for determining principal use, see the Court decisions cited above). This article has a special form, resembling that of a sorbet or ice cream dish or other dessert dish. The principal use of this class or kind of merchandise is as glassware used for table or kitchen uses. Imported empty, it is classifiable as other glassware of a kind used for table or kitchen purposes other than of glass-ceramics in subheading 7013.39.20, HTSUS (see EN 70.13 listing as table or kitchen glassware various kinds of articles used to serve food).
In regard to the authorities you cite to support your proposed classification, we concur that EN 94.05 lists as articles of heading 9405, HTSUS, "[c]andelabra, candlesticks candle brackets, e.g., for pianos". However, as stated above, we conclude that the articles are not of the class or kind of articles principally used for such purposes, and that they are of the class or kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. The articles in the rulings you cite are distinguishable from those under consideration. The articles found to be candle holders in HQ 088742 were glass articles of the form or shape of votive candle holders, a form or shape associated with candles (see, e.g., Webster’s New World Dictionary, 3rd Ed. (1988), entry for "votive candle", at 1497), and, with a height of 3" and a diameter appearing to be less, they were clearly within the size parameters stated in the July 15, 1998, CUSTOMS BULLETIN notice. The same is true of the articles classified as candle holders in HQ 089054, a "Votive Holder" and a "Faceted Votive Holder", the former 3" X 3" and the latter appearing to be 3" in diameter and less in height. In the case of HQ 953016, the article held to be a candle holder had the form of an ordinary candlestick (i.e., as stated in the ruling "the glass candleholders are similar to candlesticks and are used as candleholders"). The article in that case appears to have had a heavy base, with a narrow body into which an ordinary taper candle could be placed, and a lip at the top to catch beads of melted wax.
HOLDING:
The larger (diameter greater than 4", without the specially shaped bottom half) glassware is classified 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; the smaller, specially shaped glassware (in the form of a sorbet or ice cream dish or other dessert dish) is classified as other glassware of a kind used for table or kitchen purposes, not pressed and toughened, valued not over $3 each, in subheading 7013.39.20, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division