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