CLA-2 CO:R:C:M 956108 KCC
District Director
U.S. Customs Service
300 South Ferry Street, Room 2017
Terminal Island, California 90731
RE: HRL 088123 and HRL 951391 revoked; glasses; principal use;
Additional U.S. Rule of Interpretation 1(a); 7013.29.10;
drinking glasses; 7010; other containers used for the
conveyance or packing of goods; EN 70.10; HRL 950426;
7013.99.35; votive; HRL 088123; HRL 953016; HRL 088742; HRL
950245; non-electrical lamps and lighting fittings; EN
94.05; candlesticks; HRL 089054
Dear District Director:
This is in reference to Headquarters Ruling Letter (HRL)
088123 dated February 25, 1991 (Protest 2704-89-004153), and HRL
951391 dated August 10, 1992 (Internal Advice 14/92), on behalf
of Candle Corporation of America, which concerned the tariff
classification of glasses under the Harmonized Tariff Schedule of
the United States (HTSUS). Pursuant to section 625, Tariff Act
of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI
(Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057,
2186 (1993) (hereinafter section 625), notice of the proposed
revocation of HRL 088123 and HRL 951391 was published on April
13, 1994, in the Customs Bulletin, Volume 28, Number 15.
FACTS:
The glasses at issue in HRL 088123 and HRL 951391 were the
same style of glasses. HRL 951391 best described the glasses as
follows:
...is a glass container which is imported into the United
States empty and then filled with wax and used as a candle
holder. The glass containers are in a tapered cylindrical
shape and are approximately 4 inches in height, with a top
about 2 3/4 inches in diameter, and a bottom about 2 inches
in diameter. They are made from low quality clear glass
which holds 250 cc of wax.
Both HRL 088123 and HRL 951391 classified the glasses under
subheading 7013.29.10, HTSUS, as drinking glasses.
ISSUE:
Are the glasses classified as drinking glasses under
subheading 7013.29.10, HTSUS, or as other containers used for the
conveyance or packing of goods under subheading 7010.90.50,
HTSUS, or as votive-candle holders under subheading 7013.99.35,
HTSUS, or as non-electrical lamps and lighting fittings under
subheading 9405.50.40, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to the terms of the heading and any
relative section or chapter notes...." The competing subheadings
under consideration are as follows:
7010.90.50 Carboys, bottles, flasks, jars, pots, vials,
ampoules and other containers, of glass, of a kind
used for the conveyance or packing of goods;
preserving jars of glass; stoppers, lids and other
closures, of glass...Other...Other containers
(with or without their closures)....
7013 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018)...
7013.29.10 Drinking glasses, other than of glass-ceramics...Other...Other....Valued not over
$0.30 each.
7013.99.35 Other glassware...Other...Other...Votive-candle holders.
9405.50.40 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...Non-electrical lamps and lighting fittings...Other...
Other.
Headings 7010 and 7013, HTSUS, are both considered "use"
provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS,
states that:
[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.
Subheading 7013.29.10, HTSUS, provides for drinking glasses.
We are of the opinion that the subject glasses are not of the
class or kind of "drinking glasses" classifiable under subheading
7013.29.10, HTSUS. At the time of importation, the physical
characteristics of the glasses indicates that they are not
principally used as drinking glasses. They have mold seams,
knurling, beaded flange finish and embedded manufacturing
information. These design features are not the type of features
found on drinking glasses. Therefore, the glasses are not
properly classified as drinking glasses.
Heading 7010, HTSUS, provides for bottles, vials and other
containers of glass which are of a kind used for the conveyance
or packing of goods. Explanatory Note (EN) 70.10 of the
Harmonized Commodity Description and Coding System (HCDCS) (pg.
933-934), states that heading 7010 "covers all glass containers
of the kinds commonly used commercially for the conveyance or
packing of liquids or of solid products (powders, granules,
etc.)." The types of containers covered by this heading include:
(A) Carboys, demijohns, bottles (including syphon vases), phials
and similar containers, of all shapes and sizes, used as
containers for chemical products (acids, etc.), beverages,
oils, meat extracts, perfumery preparations, pharmaceutical
products, inks, glues, etc.
(B) Jars, pots and similar containers for the conveyance or
packing of certain foodstuffs (condiments, sauces, fruit,
preserves, honey, etc.), cosmetic or toilet preparations
(face creams, hair lotions, etc.), pharmaceutical products
(ointments, etc.), polishes, cleaning preparations, etc.
(C) Ampoules, usually obtained from a drawn glass tube, and
intended to serve, after sealing, as containers for serums
or other pharmaceutical products, or for liquid fuels (e.g.,
ampoules of petrol for cigarette lighters), chemical
products, etc.
(D) Tubular containers and similar containers generally obtained
from lamp-worked glass tubes or by blowing, for the
conveyance or packing of pharmaceutical products or similar
uses.
EN 70.10. The ENs, although not dispositive, are to be looked to
for the proper interpretation of the HTSUS. See, T.D. 98-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The key phrase in this instance is "commonly used
commercially for the conveyance" of products. The root word of
"commercially" is commerce which is described as the exchange or
buying and selling of commodities. Webster's Third New
International Dictionary (1986) and The Random House Dictionary
of the English Language (1983). The root word of "conveyance" is
convey which is described as to carry, bring or take from one
place to another; transport; bear. The Random House Dictionary
of the English Language (1983) and Webster's Third New
International Dictionary (1986).
We are of the opinion that the glasses at issue are not
principally used as the class or kind of merchandise contemplated
by heading 7010, HTSUS, are used. The types of containers found
in heading 7010, HTSUS, are principally used to convey a product
to the consumer who uses the product in the container and then
discards the container. The glasses at issue are not principally
used to commercially convey candle wax. The glasses are
necessary for the consumer to use the product, candle wax. In
use, the glasses support the candle wax. Additionally, some of
the glasses are not merely used as containers to convey the
candle wax to the consumer or support the candle wax. As the
glasses at issue hold the wax while it is being burned, they are
not properly classified under heading 7010, HTSUS. See,
Headquarters Ruling Letter (HRL) 950426 dated June 19, 1992,
which held that glass containers imported into the U.S. empty and
then filled with candle wax and a wick were classifiable as
votive-candle holders under subheading 7013.99.35, HTSUS, rather
than under subheading 7010.90.50, HTSUS.
Subheading 7013.99.35, HTSUS, provides for glass votive-candle holders. We have held that a glass votive-candle holder
is a glass holder chiefly used in churches, where the candles are
burned for devotional purposes. See, HRL 088123 dated February
25, 1991, HRL 088742 dated April 22, 1991, and HRL 950245 dated
December 10, 1991. Additionally, we have held that votive-candle
holders are generally of two types, large glasses or "sanctuary
lamps" which contain candles that burn for about a week and small
glasses which hold candles that burn for a few hours. See, HRL
950426 dated June 19, 1992.
We are of the opinion that the subject glasses are not
principally used as votive-candle holders. There is no evidence
to show that these glasses are principally burned for devotional
purposes. Therefore, classification under subheading 7013.99.35,
HTSUS, is inappropriate.
Subheading 9405.50.40, HTSUS, provides for non-electrical
lamps and lighting fittings. 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."
We are of the opinion that the terms "candlestick",
"candlestick holder", and "candleholder" 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. United States, 703 F. Supp. 941 (CIT 1988),
aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
We have previously held that empty glass candle holders are
classified under subheading 9405.50.40, HTSUS, as non-electrical
lamps and light fittings. See, HRL 953016 dated April 27, 1993,
HRL 088742 dated April 22, 1991, and HRL 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.
Based on the above definitions and rulings, we find that the
glasses are, in fact, candlesticks as the term is used in the
ENs. The articles at issue are a utensil used for supporting a
candle. They are not elaborate, but are of a simple and, in some
of the glasses, decorative form. Therefore, the glasses are
properly classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings.
HOLDING:
The glasses are classified under subheading 9405.50.40,
HTSUS, as non-electrical lamps and light fittings, which is
currently subject to the Column 1 duty rate of 7.6 percent ad
valorem.
HRL 088123 and HRL 951391 are revoked. You should advice the
Candle Corporation of America, the protestant and Internal Advice
applicant, of this decision.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director Commercial Rulings Division