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HQ 957127



May 16, 1995

CLA-2 R:C:M 957127 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

Mr. John M. Molsberry
Robert E. Landweer & Co., Inc.
Customhouse Brokers
911 Western Avenue, Suite 208
Seattle, Washington 98104

RE: NYRL 896081 revoked; glass candle holders, flower pots; principal use; Additional U.S. Rule of Interpretation 1(a); votive; HRLs 956108, 088123, 953016, 088742, 950245, 950426, 089054; non-electrical lamps and lighting fittings; EN 94.05; candlesticks

Dear Mr. Molsberry:

This is in reference to your letters of July 5, and August 25,1994, to Customs in New York, on behalf of Design Imports India, requesting reconsideration of New York Ruling Letter (NYRL) 896081 dated April 11, 1994, in which you were advised of the classification of a "flower pot" shaped frosted glass article under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided.

In NYRL 896081 you were advised that the subject articles were classified under subheading 7013.99.50, HTSUS, which provides for 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... valued over $0.30 but not over $3 each. You believe that they could be considered votive candles, classifiable under subheading 7013.99.35, HTSUS, or, in the alternative, under subheading 9405.50.40, HTSUS, as non-electric lamps and lighting fittings.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], 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), notice of the proposed revocation of NYRL 896081 was published April 12, 1995, in the Customs Bulletin, Volume 29, Number 15. FACTS:

The articles in question are described as "flower pot vase" candle holders. The samples are made of thin frosted glass and measure approximately 3 «" and 2 «" high and 2 «" in diameter. They are imported packed 6 to a master carton. Colors are unique to each carton.

ISSUE:

Are the "flower pot vase" articles classifiable as candle holders 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 headings and any relative section or chapter notes...."

GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The competing subheadings under consideration are as follows:

7013.99.35 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...Votive-candle holders.

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...Valued over $0.30 but not over $3 each.

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.

Both subheading 7013.99.35 and 7013.99.50, HTSUS, are use provisions. There are two principal types of classification by use:

(1) according to the actual use of the imported article; and

(2) according to the use of the class or kind of goods to which the imported article belongs.

Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. A few tariff provisions expressly state that classification is based on the use of the class or kind of goods to which the imported article belongs. However, in most instances, this type of classification is inferred from the language used in a particular provision. Because both subheadings contain the language "of the kind" and "used for", classification of goods under them are determined by the use of the class or kind of article to which the imported merchandise belongs.

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: [i]n 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 at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether particular merchandise falls within a class or kind. They include: general physical characteristics, the 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: Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 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.

Because both subheadings 7013.99.35 and 7013.99.50, HTSUS, are use provisions, Additional U.S. Rule of Interpretation 1(a), HTSUS, applies. This necessitates the application of the Kraft characteristics to the subject glassware. Application of the characteristics will determine to which class or kind the article belongs; indoor decoration or candle holders. Customs is of the opinion that the physical characteristics of the subject article, as well as the manner in which it is used, prevents it from being described by either subheading 7013.99.35 or 7013.99.50, HTSUS.

We are of the opinion that the subject articles are not principally used as the class or kind of merchandise, namely flower pots for indoor decoration, contemplated by subheading 7013.99.50, HTSUS. Flower pots necessarily have drainage holes either in their bottoms or on their sides. These articles do not. Additionally, their small size and frosted nature is consistent with a candle holder's purpose. Frosted glass will defuse the light from a flame, creating light which appears to have a "softer glow". Furthermore, the samples appear to be made of thin glass, which indicates use as a flower pot may not have been contemplated.

Subheading 7013.99.35, HTSUS, provides for glass votive-candle holders. We have held that the tariff definition of a glass votive-candle holder is a glass candle holder chiefly used in churches, where the candles are burned for devotional purposes. See, Headquarters Ruling Letter (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. No evidence has been provided to indicate that the subject article is principally used in a church or for devotional purposes. Additionally, the subject receptacle is not a sanctuary lamp or a candle holder described in HRL 950426. Moreover, the subject article does not have any physical characteristics (e.g.; screened religious scenes) consistent with a votive-candle holder. Therefore, classification under subheading 7013.99.35, HTSUS, is precluded.

Subheading 9405.50.40, HTSUS, provides for non-electrical lamps and lighting fittings. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). 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 "candle holder" are interchangeable. Candle holder 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 subject articles are, in fact, candlesticks as the term is used in the ENs. They are principally used in the United States as support for a candle. They are not elaborate, but are of a simple form. Therefore, the articles are properly classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings. For the reasons set forth in this ruling, NYRL 896081 is revoked.

HOLDING:

The candle holders are classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and lighting fittings, which is currently subject to the Column 1 duty rate of 7.3 percent ad valorem.

NYRL 896081 is revoked. In accordance with 19 U.S.C. 625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 625(c)(1) 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

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