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HQ 957532



July 13, 1995

CLA-2 R:C:M 957532 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.; 9405.54.40

District Director
U.S. Customs Service
P.O. Box 1490, Rm 218
St. Albans, VT 05478

RE: Protest 0201-94-100218 ; bulb glasses and candle holders; indoor decoration, non-electrical lamps and lighting fittings; EN 70.13, 94.05(i)(6); HRLs 955951, 953061, 088742, 952054; Hasbro Industries, Inc. v. U. S., C.J. Tower & Sons of Buffalo, Inc. v. U. S.;

Dear District Director:

The following is our decision regarding Protest 0201-94-100218 concerning your action in classifying and assessing duty on bulb glasses and candle holders under the Harmonized Tariff Schedule of the United States (HTSUS). No samples or descriptive literature was submitted with the file and discussions between this office and protestant did not produce any.

FACTS:

According to the available information, the subject merchandise consists of 2 glass articles. The first is described as either an amethyst, cobalt blue, or emerald green colored round glass article. The second is described as a square clear glass article. A facsimile from the protestant states that the "containers" were used as a component in a bulb growing kit . Further, it suggests that the subject articles should be considered "containers" for the conveyance of the bulbs.

The subject articles were entered under subheading 7013.99.35, HTSUS, as votive candle holders. The entries were liquidated on February 18, 1994; the clear square glass articles were classified under subheading 9405.50.40, HTSUS, as candle holders and the colored glass articles were classified under subheading 7013.99.50, HTSUS, as decorative glass articles. A protest was timely filed on May 18, 1994.

ISSUE:

Are the subject articles classifiable as glass containers for the packing and conveyance of goods under subheading 7010.90.50, HTSUS, or votive candle holders under subheading 7013.99.35, HTSUS, or glass indoor decorative articles under subheading 7013.99, HTSUS, or as glass 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 (GRIs). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. The subheadings under consideration are:

7010.90 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

7010.90.50 other containers (with or without their closures)

7013.99 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): other

7013.99.35 votive-candle holders

7013.99.50 other: valued over .30› but not over $3 each

9405.50 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

9405.50.40 other

Protestant has stated that the subject articles are not votive candle holders as originally entered. Instead, protestant has suggested that the articles are containers for the conveyance of flower bulbs in a "bulb growing kit" classifiable under heading 7010, HTSUS.

In understanding the language of the headings and subheadings the Explanatory Notes (ENS) of the Harmonized Commodity Description and Coding System may be utilized. The ENS, 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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 70.10, pg. 933-934, states, in pertinent part, that:

This heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They 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..., pharmaceutical products,... 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.

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 bulb glasses at issue are not principally used as the class or kind of merchandise contemplated by heading 7010, HTSUS. 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 flower bulbs. Rather, the bulb glasses serve as a place for the growth and display of the bulb. As the bulb glasses hold and display the bulb while it is growing and matured, they are not properly classified under heading 7010, HTSUS.

Headquarters Ruling Letter (HRL) 955951 dated April 15, 1995, classified glass articles used inside houses for planting hyacinth bulbs in water. It held that the hyacinth glasses constituent material (glass) allowed one to view intricate root growth, and the article's shape indicated it was used as a decorative item in the household. Because it was found to be a decorative household item, it belonged to the class or kind of articles classifiable under subheading 7013.99, HTSUS.

Similarly, the size, round shape and colored glass of the subject colored bulb glasses indicates that they are a decorative item used in the household. Therefore, they are classifiable under subheading 7013.99, HTSUS.

The clear square glass articles were classified by Customs at the port of entry as candle holders. 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 "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. U. S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v. U. S., 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 952054 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, and in the absence of any samples or descriptive literature indicating otherwise, we find that the square clear glass articles are, in fact, candlesticks as the term is used in the ENS. The size, shape, and constituent material of the square clear glass article, indicate that they are principally a utensil used for supporting a candle. Therefore, the square glass articles are properly classified under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings.

HOLDING:

The protest should be DENIED. The colored bulb glasses are classifiable under subheading 7013.99, HTSUS. Classification to the eight digit level will vary according to the value of the article. The square clear glassware is classifiable under subheading 9405.50.40, HTSUS, with a column one duty rate of 7.3 percent ad valorem.

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 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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