HQ 962860

> November 16, 1999

CLA-2 RR:CR:GC 962860 AML

**CATEGORY:** Classification

**TARIFF NO.:** 9405.50.40

Port Director

U.S. Customs Service

P.O. Box 3130

Laredo, TX 78044

**RE:** Internal Advice 11/99; two piece decorative glass article.

Dear Port Director:

The following is our decision regarding your memorandum (CLA 2:07:EC),
dated April 16, 1999, forwarding Internal Advice 11/99, which was
initiated by counsel on behalf of the Gerson Company, and seeks
classification of a two piece decorative glass article pursuant to the
Harmonized Tariff Schedule of the United States (HTSUS). A sample was
provided for our examination. We regret the delay in responding.

**FACTS**:

Based upon the information and sample provided, the product consists of
two articles of glass, one with a 2 1/2\" opening at the top and a
classic lantern design which roughly resembles a hurricane lamp. This
piece is approximately 5\" in height. From the 2 1/2\" inch opening the
diameter is reduced to approximately 2 1/4\", and then is widened to
approximately 3 3/4\" inches, which is then reduced to a shelf which
measures approximately 1/8\" in height and 2 3/4\" in diameter, which is
further reduced to a cylinder approximately 2\" in diameter and 1 3/8\"
in height. This cylinder fits into the globe-like base. When placed on
the globe-like base, the shelf portion of this piece rests on the lip of
the globe shaped base.

The globe-like base resembles a small, round fishbowl and measures
approximately 4 3/8\" in height. The opening measures approximately 2
5/8\" in diameter, which is reduced to 2 1/4\", which is widened to
approximately 4 1/8\", which is then reduced to a base which measures
approximately 2\".

The article is packaged in a box which refers to it as a two piece glass
candle holder and describes the article as blown glass from Mexico. The
article is depicted on one panel of the container with a red candle
burning and the base filled with pine needles and a poinsettia flower,
and the exterior tied with ribbons for a Christmas motif. The opposite
panel depicts the article with a white candle burning, potpourri within
the base, and the exterior decorated with flowers. The two remaining
panels provide directions on how to recreate the decorations depicted in
the photographs. A disclaimer states that only the two piece glass
article is contained in the package. Neither the candles nor any of the
other fillings or decorations are included within the package.

**ISSUE**:

Whether the article should be classified under subheading 7013.99.50,
HTSUS, as a decorative glass article; or subheading 9405.50.40, HTSUS,
as a candle holder?

**LAW and ANALYSIS**:

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.

The applicable HTSUS headings and subheadings 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):
>
> Other glassware :
>
> 7013.99 Other:
>
> Other:
>
> Other:
>
> 7013.99.50 Valued over \$0.30 but not over \$3 each.
>
> \* \* \*
>
> 9405 Lamps and lighting fittings including searchlights
>
> and spotlights and parts thereof, not elsewhere
>
> specified or included; illuminated signs, illumi‑
>
> nated nameplates and the like, having a perma‑
>
> nently fixed light source, and parts thereof not
>
> elsewhere specified or included:
>
> 9405.50 Non‑electrical lamps and lighting fittings:
>
> Other:
>
> 9405.50.40 Other.

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 articles 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 C.F.R. 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 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 94.05 (pg. 1581), 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 94.05(I)(6) states that this heading covers . .
. in particular candelabra, candlesticks, and candle brackets.

The glass components of the article under consideration resemble a small
lantern or hurricane lamp which rests on a globe shaped base, which are
not of the forms or shapes considered in the March 25, 1998, CUSTOMS
BULLETIN. However, it (the article with the candle holder held by the
base) is a 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. We note that the cylinder portion at the bottom
resembles a votive type candle holder and that the shape of the upper
portion is similar to that of the shade of an oil lantern. Additionally,
the promotional literature for the article indicates that the
environment of sale of the article is one for candle holders, not
general purpose decorative glassware. Imported separately, this article
would be classifiable within heading 9405, HTSUS, as a candle holder.
The globe shaped base functions in a similar manner to the wrought iron
pedestals in the rulings referred to below; its form indicates use to
hold the upper portion of the article, or, if imported separately, as a
general purpose decorative article, such as a vase or potpourri holder
(classifiable within heading 7013, HTSUS).

The two articles make up a set put up for retail sale for purposes of
GRI 3(b). That is, they are, *prima facie*, classifiable in different
headings (see above), they are put together to meet a particular need or
carry out a specific activity (that of serving as a decorative candle
holder), and they are put up in a manner suitable for sale directly to
users without repacking (see, *e.g*., Headquarters Ruling (HQ) 962090,
dated June 11, 1999). Pursuant to GRI 3(b), classification of the set is
determined on the basis of the component which 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 to hold or
contain a candle (as shown in the promotional literature). Clearly, the
upper component performs this function, with the base performing the
subsidiary function of holding the candle holder. 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 upper component provides the essential character of
the set. Accordingly, we conclude 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.

The articles will be classified within subheading 9405.50.40, HTSUS, as
a candle holder.

This determination is consistent with other rulings issued by this
office:

In HQ 957794, dated October 2, 1995, glass articles with wrought iron
bases were classified within heading 9405, HTSUS. In that ruling we
noted that

> \[w\]e have previously held that empty glass candle holders are
> classified under subheading 9405.50.40, HTSUS, as non‑electrical lamps
> and light fittings. See, HQ 957127 dated May 16, 1995, HQ 953016 dated
> April 27, 1993, HQ 088742 dated April 22, 1991, and HQ 089054 dated
> August 2, 1991, which classified glass candle holders as
> non‑electrical lamps and light fittings under subheading 9405.50.40,
> HTSUS, pursuant to EN 94.05.

See also HQ 960503, dated July 9, 1998, in which a cone shaped glass
article with metal pedestal was classified under subheading 9405.50.40,
HTSUS.

**HOLDING**:

The two piece decorative glass articles are classified in subheading
9405.50.40, HTSUS, as candle holders.

You are directed to mail this decision to the internal advice applicant,
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.gov*, by means of the Freedom of
Information Act, and other public methods of distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division