HQ 955935

March 14, 1994

CLA-2 CO:R:C:M 955935 KCC

CATEGORY: Classification

TARIFF NO.: 9405.50.40

Mr. Steve Liptak

Inter-Maritime Forwarding Co., Inc.

156 William Street

New York, New York 10028

RE: DD 881552 revoked; glasses; 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 953016;

HRL 088123; HRL 953013; HRL 088742; HRL 950245; non-electrical lamps and
lighting fittings; EN 94.05;

candlesticks; HRL 089054

Dear Mr. Liptak:

This is in reference to District Director Ruling (DD) 881552

issued to you on January 12, 1993, on behalf of H & H Glass,

Inc., which concerned the tariff classification of glasses under

the Harmonized Tariff Schedule of the United States (HTSUS).

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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 (1993) (hereinafter section 625),

notice of the proposed revocation of DD 881552 was published on

April 13, 1994, in the Customs Bulletin, Volume 28, Number 15.

FACTS:

The glasses, item #303 Fifty and item #50 HR GWC Tumbler, at

issue in DD 881552 were described as follows:

They are about 5\" tall and 2 3/4\" wide. No unit value was

advised. The value per unit is believed to not exceed \$3.

each. Two have a slight taper, the other is straight sided

with a slight bulge at mouth and base. They have the

appearance of drinking glasses, indeed, one being described

as a \"tumbler\", as noted above. These items are considered,

accordingly, to be drinking glasses, affidavits as to end

use not withstanding.

Affidavits were provided which stated that, after importation

into the U.S., the glasses were filled with candle wax and a

wick.

In DD 881552, the District Director, Ogdensburg, New York,

held that the glasses were classified under subheading 7013.29.10

or 7013.29.20, HTSUS, which provides for drinking glasses.

Classification to the exact eight digit level was dependant upon

the value of the glasses.

ISSUE:

Are the glasses 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\....\" The competing subheadings

under consideration 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.

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 subject glasses 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 glasses indicates that they are not

principally used as drinking glasses. They have mold seams,

knurling, beaded flange finish and embedded manufacturing

information. These design features are not the type of features

found on drinking glasses. Therefore, the glasses are not

properly classified as drinking glasses.

Heading 7010, HTSUS, 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. See. T.D. 89-80, 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 glasses 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 glasses at issue are not principally

used to commercially convey candle wax. The glasses are

necessary for the consumer to use the product, candle wax. In

use, the glasses support the candle wax. Additionally, some of

the glasses are not merely used as containers to convey the

candle wax to the consumer or support the candle wax. They 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

glasses a decorative feature. As the glasses at issue hold the

wax while it is being burned, they are not properly classified

under heading 7010, HTSUS. See, Headquarters Ruling Letter (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 as votive-candle holders 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 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.

We are of the opinion that the subject glasses are not

principally used as votive-candle holders. There is no evidence

to show that these glasses 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 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

glasses 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 glasses, decorative form. Therefore, the glasses are

properly classified under subheading 9405.50.40, HTSUS, as
non-electrical lamps and light fittings.

HOLDING:

The 303 Fifty and 50 HR GWC Tumbler glasses are classified

under subheading 9405.50.40, HTSUS, as non-electrical lamps and

light fittings, which is currently subject to the Column 1 duty

rate of 7.6 percent ad valorem.

DD 881552 is revoked.

In accordance with section 625, this ruling will become

effective 60 days after its publication in the Customs Bulletin.

Publication of rulings or decisions pursuant to section 625 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