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HQ 967355




November 30, 2004

CLA-RR:CR:GC 967355 RSD

CATEGORY: CLASSIFICATION

TARIFF NOS. 9405.50.4000 and 8306.29.0000

Port Director
U.S. Customs and Border Protection
Port of Newark, and New York
C/O Protest and Control Section
1100 Raymond Blvd.
Suite 402
Newark, New Jersey 07102

RE: Protest Number 4601-04-100970; Decorative Candleholders and an ornamental metal article shaped like a turtle

Dear Port Director:

This is our decision on Protest 4601-04-100970, filed by J.T.S. International, on April 22, 2004, against your decision on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for candleholders and an ornamental metal article in the form of a turtle. Photostatic copies showing pictures of the products under consideration were provided.

FACTS:

The subject merchandise of this protest are two items, decorative candleholders, style number M74110, and an ornamental turtle of base metal, style number M74080. The submitted photostatic picture of the candleholder depicts three spiral shaped footed metal receptacles each containing a glass votive–like holder. The picture also shows a metal branch-like extension onto which is affixed a butterfly-like figure. It is stated that the metal portion of these candleholders is made of copper and tin. The photostatic picture of other article, style number M74080, depicts a footed turtle-shaped frame of base metal with top disk-shaped (non-metal) beads and ball-shaped (non-metal) attachments which are incorporated around the head, for simulating the eyes, and also around the feet. The imported merchandise was entered under subheading 7326.90.60, HTSUS as: other articles of iron or steel: Other: Other: Other: Coated or plated with precious metal. The entry was liquidated under subheading 9405.50.40, HTSUS on March 12, 2004. Protestant claims that the merchandise was incorrectly entered under subheading 7326.90.60, HTSUS, due to a clerical error and that subheading 7326.90.10, HTSUS, is the correct provision. The entry under protest was liquidated on March 12, 2004, and the protest was filed on April 22, 2004 .

ISSUE:

What is the proper classification under the HTSUS for the decorative candleholders, style number M74110 and an ornamental turtle of base metal, style number M74080?

LAW AND ANALYSIS:

We first note that the Protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

7326 Other articles of iron or steel:

7326.90 Other:

7326.90.10 Of tinplate.

Other:

Other:

7326.90.60 Coated or plated with precious metal.

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:

Statuettes and other ornaments, and parts thereof:

8306.29.00 Other.

9405 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:

9405.50 Non-electrical lamps and lighting fitting:

Other:

9405.50.40 Other.

Initially, it is noted that no evidence was submitted to support the allegation of a clerical error. Accordingly, this claim is denied.

EN 94.05 states the heading covers in particular:

(6) Candelabra, candlesticks, candle brackets, eg. for pianos.

We have very limited information regarding the merchandise under consideration. All the information regarding the merchandise that was submitted was a picture of the products. We assume for the purposes of this ruling, that the decorative candleholder style number M74080 is made primarily of metal, except for the glass votive-like candleholder and the beads. Once the wax is consumed in the votive-like glass holder, a new glass holder can be inserted into the metal receptacle holder.

In 086338 dated April 6, 1990, Customs and Border Protection (CBP) considered the classification of a candlestick holder with a decorative base made of pewter. The holder had a socket in which the candle was held. We looked at the ENs for guidance in the classification of this item and noted that the terms “candlestick”, “candlestick holder”, and “candleholder” were used interchangeably in the ENs. Based on several dictionary definitions, we found that the candlestick holder was a candlestick as the term was used in the ENs, because a candlestick holder holds candles. Therefore, we held that the candlestick holder was classified in subheading 9405.50, HTSUS as a non-electric lamp and lighting fitting.

In many other rulings, CBP has also held that candleholders are classified in heading 9405, HTSUS. See HQ 088742, dated April 21, 1991; NY G87432, dated March 12, 2001; NY F80516 dated December 27, 1999; NY A84739, dated July 3, 1996; and NY I80626, dated May 2, 2002.

The cited rulings indicate that the main factor in determining whether an article is classified as a candleholder in heading 9405, HTSUS depends upon whether it is principally designed and used to hold candles. Based on our observation of the picture of the merchandise under consideration (i.e. M74110), we believe that their design and structure indicates that they are intended essentially to hold candles. A votive-like glass candleholder fits within the metal coil section of each of the articles, which indicates that the items are designed to hold a candle. We also note that heading 9405, HTSUS provides a more specific description of the article then the alternative proposed heading, 7326, HTSUS which is a general basket provision for other articles of iron or steel. See General Rules of Interpretation 3(a). Therefore, we find that the articles under consideration, designated as M74110, are classified in heading 9405, HTSUS as non-electrical lamp and lighting fittings.

With respect to the ornamental turtle style number M74080, there is no indication that it is intended to hold a candle. Based on the submitted picture, we believe that the item appears to be a statuette or a figurine. Accordingly, we conclude that it should be classified in heading 8306, HTSUS, which provides for statuettes and other ornaments and parts thereof, of base metal.

HOLDING:

The decorative candleholders style number M74110 are classified under subheading 9405.50.4000, HTSUS, as: 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 fitting: Other: Other, dutiable at 6% ad valorem. The ornamental turtle, style number M74080, is classified in subheading 8306.29.0000, HTSUS, as: Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:Other, at a general column one rate of duty, which is free. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and a partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon,

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