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HQ 957959



October 3, 1995

CLA-2 R:C:M 957959 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

District Director
U.S. Customs Service
610 S. Canal Street
Chicago, Il 60607

RE: Protest 3901-95-100784; vegetable material fittings for beachcomber torches; non-electrical lighting fitting; Note 2 to Chapter 14, Note 6 to Chapter 44; ENs GEN 14, 94.05, 44.21

Dear District Director:

The following is our response to Protest 3901-95-100784 concerning your actions in classifying and assessing duty on a non-electrical lighting fitting designed to hold a canister filled with citronella oil and a wick under the Harmonized Tariff Schedule of the United States (HTSUS). Literature with pictures of the article as well as a sample were provided.

FACTS:

The submitted sample measures approximately 22" high and is made of coated vegetable material. It consists of one large stick split into 8 smaller sticks, 12 strips of coated vegetable material, 2 round shaped sticks, and several pieces of securing material. The splits of the 8 smaller sticks begin approximately 6" from the bottom of the large stick and are prevented from reaching the bottom by several pieces of securing material wrapped around them. The 8 smaller sticks continue up from the securing material unobstructed for approximately 8" where one of the round shaped sticks is placed in the inside area created by the 8 smaller sticks. Each smaller stick has been secured to the round shaped stick by strips of securing material. The rounded stick serves a dual purpose. It opens up the inside area of the 8 smaller sticks so that the strips of vegetable material can be woven in between them and it supports the citronella canister placed in the article after importation. The woven portion of the article measures approximately 8" and is capped by another secured round stick. A black hollow rounded piece of wood is attached to the first round stick by a long strip of securing material. According to protestant, this piece of wood serves as a "flameguard" or snuffer.

Protestant describes the subject article as a " bamboo pole" which he explains is imported by itself. Protestant states that after importation, the subject article is filled with a canister, wick, flameguard, hand tag, and packaging. Literature submitted indicates that the completed product is described as a "Beachcomber Torch" and that replacement citronella and wicks are available. We note that the submitted literature indicates that the "beachcomber torches" measure 60" high.

Protestant entered the subject articles under subheading 1401.90.40, HTSUS, as vegetable materials of a kind used primarily for plaiting (for example, bamboos, rattans, reeds, rushes, osier, raffia, cleaned, bleached or dyed cereal straw, and lime bark): other: other . The entries were liquidated on January 10, 1995, under subheading 9405.50.40, HTSUS, as non-electric lighting fittings. A protest was timely filed on April 5, 1995.

The subheadings under consideration are as follows:

1401.90.40 vegetable materials of a kind used primarily for plaiting (for example, bamboos, rattans, reeds, rushes, osier, raffia, cleaned, bleached or dyed cereal straw, and lime bark): other: other...............................................................................3.2%

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...7.3%

4421.90.98 other articles of wood: other: other................................................................4.7%

ISSUE:

Are the vegetable material articles classifiable under subheading 9405.50.40, HTSUS, as non-electric lamp fittings, under subheading 1401.90.40, HTSUS, as vegetable materials of a kind used primarily for plaiting or under subheading 4421.90.98, HTSUS, as other articles of wood?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. 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.

Protestant argues that subheading 1401.90.40, HTSUS, describes the merchandise in its condition as imported. We disagree. Heading 1401, HTSUS, covers, among other things, vegetable materials of a kind used primarily for plaiting.

Note 2 to Chapter 14, HTSUS, states in pertinent part, that Chapter 14 applies, inter alia, to bamboos (whether or not split, sawn lengthwise, cut to length, rounded at the ends, bleached, rendered nonflammable, polished or dyed), split osier, reeds and the like, to rattan cores and to drawn or split rattans.

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 GEN to chapter 14, p. 95, states in pertinent part, that:

This Chapter covers:

(1) Vegetable materials, raw or simply worked, of a kind used primarily for plaiting, broom or brush making, or as stuffing or padding.

While the constituent material of the subject article meets the description of the Chapter 14, Note 2, the material has been advanced in condition so as to create an article. The article, in its condition as imported, is not raw or simply worked. Round pieces of vegetable material have been secured to the smaller 8 sticks to create the shape of an article. Additional vegetable material has been woven in between the sticks to further the shape and create an article. At the time of importation, an article made of vegetable materials is presented; not simply the vegetable material itself. Because the subject vegetable material is more than simply worked, it is not described by subheading 1401.90.40, HTSUS.

Subheading 9405.50.40, HTSUS, provides for non-electrical lamps and lighting fittings. EN 94.05 (pg. 1581), states , in pertinent part, that:

Lamps and lighting fittings of this group can be constituted of any material (excluding those materials described in Note 1 to Chapter 71) and use any source of light (candles, oil, petrol, paraffin (or kerosene), gas, acetylene, electricity, etc.)...

This heading covers in particular:

...(2) Lamps for exterior lighting, e.g.: street lamps; porch and gate lamps...

The subject article, in its condition as imported, is designed to support a canister containing a wick and citronella oil for burning. After importation, a citronella oil lamp is placed in the subject article. This combination is then sold for use as an outdoor porch or deck torch. We find the subject article to be a lighting fitting as the term is used in the Explanatory Notes. The shape created and support supplied by the rounded bamboo sticks, together with the woven portion of the vegetable material is sufficient to provide a lighting fitting character to the subject article. Simply put, in its condition as imported, the article is designed to hold and support an oil lamp.

Chapter 44 provides in pertinent part, for articles of wood. Note 6 to Chapter 44, provides in pertinent part, that: for the purposes of this Chapter... any reference to "wood" applies also to bamboo and other materials of a woody nature. Heading 4421 provides, in pertinent part, for other articles of wood. EN 44.21, pg.638, states, in pertinent part, that:

This heading covers all articles of wood manufactured by turning or by any other method, or of wood marquetry or inlaid wood, other than those specified or included in the preceding headings and other than articles of a kind classified elsewhere irrespective of their constituent material.

As the articles are more specifically described as candle holders they are not classifiable as other articles of wood. Therefore, the candle holders are classifiable under heading 9405, HTSUS.

HOLDING:

The protest should be DENIED. The vegetable material lighting fittings are classifiable under subheading 9405.50.40, HTSUS, as lighting fittings.

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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