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HQ 954308

June 6, 1994

CLA-2 CO:R:C:M 954308 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

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

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