HQ 960475

June 30, 1998

CLA-2 RR:CR:GC 960475 PH

CATEGORY: Classification

TARIFF NO.: 7013.99.50; 9405.50.40

Port Director

U.S. Customs Service

Post Office Box 3130

Laredo, Texas 78044

RE: Protest 2304-95-100241; flower pot shaped glassware; candle

holder; glassware for table, kitchen, toilet, office, indoor

decoration; principal use; U.S. Additional Note 1(a); United

States v. Carborundum Co., 63 CCPA 98 (1976); Stewart-Warner

Corp. v. United States, 3 Fed. Cir. (T) 20 (1984); Group

Italglass U.S.A., Inc. v. United States, 17 CIT 1177 (1993);

E.M. Chemicals v. United States, 923 F. Supp. 202 (1996);

Lenox Collections v. United States, 19 CIT 345 (1995); G.

Heileman Brewing Co. v. United States, 14 CIT 614 (1990); HQ

957127; NY 894791

Dear Port Director:

This is our decision on protest 2304-95-100241, against your

classification under the Harmonized Tariff Schedule of the United

States (HTSUS) of a \"Maceta Mediana\" (medium flower pot). A

sample was provided. In preparing this decision, consideration

was also given to a supplemental submission dated May 27, 1997,

from counsel for the protestant.

FACTS:

The invoice description of the merchandise is \"MACETA

MEDIANA\" (medium flower pot). The protestant describes the

merchandise as \"medium sized glass candle holders in the shape of

flower pots \... measur\[ing\] 5 1/2\" high and \... across the top

\... made of fairly thick glass \... and \... not hav\[ing\] holes or

any means of drainage.\" The sample meets this description. The

inside of the base is concave in shape (so that the middle of the

inside is raised). The importer states that it sells the

merchandise as candle holders and that its customers also sell

them as candle holders. The importer has provided packaging of

two different kinds of \"candle rack\[s\]\", in which items such as

the merchandise under consideration are displayed with \"votive\"

style candles (or a pillar candle, in one case) burning in them.

The merchandise was entered on October 21 and 31, 1994, with

classification claimed by the importer in subheading

9405.50.4000, HTSUS. The entries were liquidated on September

29, 1995, with classification in subheading 7013.99.5000, HTSUS.

The importer\'s counsel filed this protest with Customs on

December 27, 1995, against the classification of the merchandise.

Stating that a smaller version of the article was held to be

classifiable under subheading 9405.50.4000, HTSUS, in New York

Ruling (NY) 894791 dated March 15, 1994, and citing Headquarters

Ruling (HQ) 957127 dated May 16, 1995, the protestant contends

that the medium flower pots in the protested entries should be

similarly classified. The protestant argues that \"\... these

articles (in all three sizes) are designed, sold, and, to the

importer\'s knowledge, principally used as candle holders\" and

should be classified accordingly.

The subheadings under consideration are as follows:

7013.99.50 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 \$0.30 but not over \$3

each.

The 1994 general column one rate of duty for goods classifiable

under this provision is 30% 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 1994 general column one rate of duty for goods classifiable

under this provision is 7.6% ad valorem.

ISSUE:

Whether the medium flower pots of glass are classifiable as

glassware of a kind used for table, kitchen, toilet, office,

indoor decoration or similar purposes in subheading 7013.99.50,

HTSUS, or other non-electrical lamps and lighting fittings in

subheading 9405.50.40, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e.,

within 90 days after but not before the notice of liquidation;

see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is

protestable (see 19 U.S.C. 1514(a)(2) and (5)).

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.

Subheadings 7013.99.50 and 9405.50.40, 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 United

States 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 (glassware in

various forms, including a flower pot shape). In the March 25,

1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12,

Customs issued a notice under 19 U.S.C. 1625 proposing to modify

or revoke certain Headquarters and New York ruling letters,

including HQ 957127 (cited by the protestant and discussed

herein), 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

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) 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.

Thus, according to the above analysis, the flower pot shape

glassware under consideration, made of thick glass and having a

top diameter of 5 1/2\" and a height of 5 1/2\", is of a class or

kind principally used for indoor decoration or similar purposes

(i.e., its size, particularly the top diameter, precludes its

inclusion in the class or kind of goods principally used as

candle holders). This is consistent with the pertinent factors

listed by the Courts for determining principal use (see above).

That is, in regard to physical characteristics, the size of the

opening permits easy access, the concave form of the interior of

the base could permit a candle to slip to the side of the

article, and the thickness of the glass permits use as a flower

pot (compare to HQ 957127, cited by the protestant, in which the

size (2\" in diameter and either 2\" or 3\" in height) and thinness

of the glass were found to support principal use as a candle

holder; in regard to the absence of a drainage hole, considered

in HQ 957127, we note that it is incorrect that \"\[f\]lower pots

necessarily have drainage holes\" (see, e.g., Indoor Plants:

Comprehensive Care and Culture, Doris F. Hirsch (1977), pp. 178-179)).
Insofar as NY 894791, cited by the protestant, is

concerned, the top diameter of the \"flower pot candle holder\"

involved in that case was 2 3/4\", well within the dimensions

described above for the class or kind of goods principally used

as candle holders. Consistent with Customs conclusions (see

above) in regard to the March 25, 1988, Customs Bulletin notice,

NY 894791 remains in effect for the merchandise described

therein. In regard to the other pertinent factors (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), the evidence obtained from the

public in response to the March 25, 1988, Customs Bulletin

notice, supra, supports principal use for indoor decoration and

not as a candle holder.

The packaging provided by the protestant, displaying

glassware such as that under consideration with candles burning

in them, may provide some evidence of the actual use of the

merchandise, and may address the expectation of ultimate

purchasers of the merchandise and the environment of sale. In

this regard, however, we note the statement of the Court in Group

Italglass, supra, that:

While heading 7010 is not an \"actual use\" provision,

evidence of the actual use of the imported goods could,

depending upon the quantum of proof, have some minimal

relevant probative value on the issue of principal use.

Similarly, evidence of the principal use of the specific

imports is relevant to the principal use of the class or

kind of goods to which the imported goods belong. Plainly,

evidence of the actual or principal use of the specific

imports standing alone could not, absent their constituting

the entire class or kind of goods under consideration, make

a prima facie case on the issue of principal use where the

controlling issue is the principal use of the class or kind

to which the merchandise belongs. \[17 CIT at 1177, footnote

1.\]

HOLDING:

The \"flower pot vase\" articles are classifiable as other

glassware of a kind used for indoor decoration or similar

purposes, valued over \$0.30 but not more than \$3 each, under

subheading 7013.99.50, HTSUS.

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 should be mailed, with

the Customs Form 19, by your office to the protestant no later

than 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 the decision. Sixty days from the date of

the 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, Freedom of Information Act, and other

public access channels.

Sincerely,

John Durant, Director,

Commercial Rulings Division