CLA-2 CO:R:C:M 954308 KCC
District Director
U.S. Customs Service
300 South Ferry Street
Room 2017
Terminal Island, California 90731
RE: Protest No. 2704-93-100772; glass candle holders; 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 953013; HRL 088742; HRL
950245; non-electrical lamps and lighting fittings; EN
94.05; candlesticks; HRL 089054
Dear District Director:
This is in response to Protest No. 2704-93-100772, which
pertains to the tariff classification of glass candle holders
under the Harmonized Tariff Schedule of the United States
(HTSUS). An additional submission dated February 14, 1994,
specifications for, and samples of the glass candle holders were
submitted for examination.
FACTS:
The protestant has submitted empty and candle wax filled
samples of the glass candle holders which are described as
follows:
1. 340 Pixxi glass candle holder is 5 inches tall, has an
overflow capacity of 298 ml and an exterior mouth diameter
of 66 mm. After importation, the empty holder is filled
with candle wax and a wick.
2. 303 Fifty glass candle holder is 5 inches tall, has an
overflow capacity of 256 ml and an exterior mouth diameter
of 66 mm. After importation, the inside of the empty holder
is coated with color lacquer, filled with candle wax and a
wick, and then the exterior surface is stenciled with a
design. The submitted wax filled sample is stenciled with
the "Virgen De Guadalupe."
3. F2708 glass candle holder is 4 inches tall, has an overflow
capacity of 210 ml and an exterior mouth diameter of 65 mm.
After importation, the empty holder is filled with clear or
colored candle wax and a wick.
4. 50 HR GWC Tumbler is 5 inches tall, has an overflow capacity
of 264 ml and an exterior mouth diameter of 68 mm. After
importation, the empty holder is coated with color lacquer,
filled with scented candle wax and a wick, and a plastic cap
is positioned on the mouth to keep the scent of the wax from
dissipating.
The protestant states that all of the above glass candle
holders are manufactured on an automated individual section
container forming machine using recyclable glass. The glass
candle holders are produced by pressure in a mould which is then
blown with compressed air. The machine can utilize a variety of
2, 4, 6 or 8 section stock moulds with single cavity or double
cavity capability. A minimum run requirement for the automated
individual section container forming machine is 150,000 piece
order.
The protestant further states that the glass candle holders
are low cost items ranging from $0.5455/dozen to $0.675/dozen and
each holder incorporates the Glass Packaging Institute (GPI) or
Glass Container Manufacturing Institute (GCMI) finish standards
bead style flange to give the ultimate packager the ability to
utilize industry standard resealable plastic closures.
Upon importation, the entries of the glass candle holders
were liquidated on December 4, 1992, under subheading 7013.29.10,
HTSUS, as drinking glasses. In a protest timely filed on March
3, 1993, the protestant contends that the glass candle holders
are properly classified under subheading 7010.90.50, HTSUS, as
other containers for the conveyance and packing of goods, or
under subheading 7013.99.35, HTSUS, as votive candle holders, or
under subheading 9405.50.40, HTSUS, as non-electrical lamps and
lighting fittings.
The competing subheadings 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.
ISSUE:
Are the glass candle holders 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...." 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 glass candle holders 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 glass candle holders indicate
that they are not principally used as drinking glasses. They
have mold seams, knurling, beaded flange finish (except F2708)
and embedded manufacturing information. These design features
are not the type of features found on drinking glasses.
Therefore, the glass candle holders are not properly classified
as drinking glasses.
The protestant contends that the glass candle holders are
classifiable under heading 7010, HTSUS, which 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. 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 glass candle holders 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 glass candle
holders at issue are not principally used to commercially convey
candle wax. The glass candle holders are necessary for the
consumer to use the product, candle wax. In use, the glass
candle holders support the candle wax. Additionally, some of the
glass candle holders, i.e., 340 Pixxi, 303 Fifty and 50 HR GWC
Tumbler, are not merely used as containers to convey the candle
wax to the consumer or support the candle wax. The 340 Pixxi,
303 Fifty and 50 HR GWC Tumbler, also serve a decorative purpose
as they have a design molded into the glass and/or a color
lacquer applied to the glass which gives the glass candle holders
a decorative feature. As the glass candle holders at issue hold
the wax while it is being burned, they are not properly
classified under heading 7010, HTSUS. See, 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 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 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 glass candle holders
are not principally used as votive-candle holders. The only
votive evidence submitted was a wax filled sample of the 50 HR
GWC Tumbler which was stenciled with the "Virgen De Guadalupe."
There is no other evidence to show that these glass candle
holders 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 lamp fittings. See, HRL 953013 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
glass candle holders 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 holders, decorative form. Therefore, the
glass candle holders are properly classified under subheading
9405.50.40, HTSUS, as non-electrical lamps and light fittings.
It should be noted that DD 881552 dated January 13, 1993,
classified the 303 Fifty and 50 HR GWC Tumbler glass candle
holders under subheading 7013.29.10 or 7013.29.20, HTSUS, as
drinking glasses. Classification to the eight digit level is
dependant upon the actual value of the glass candle holders.
DD 881552 was revoked in HRL 955935 dated May 16, 1994, published
in the Customs Bulletin, Volume 28, Number 22 (June 1, 1994).
HRL 955935 classified the 303 Fifty and 50 HR GWC Tumbler glasses
under subheading 9405.50.40, HTSUS, as non-electrical lamps and
light fittings.
HOLDING:
The 340 Pixxi, 303 Fifty, F2708, and 50 HR GWC Tumbler glass
candle holders are classified under subheading 9405.50.40, HTSUS,
as non-electrical lamps and light fittings.
Since reclassification of the glass candle holders as
indicated above will result in a lower rate of duty than
liquidated, you should Grant the protest. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1993, Subject: Revised Protest Directive, this decision,
together with the Customs Form 19, should be mailed 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, Lexis,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director