HQ 0950426 - Protest No. 2704-91-102479; glass container; glass candle holder; use provisions; principal use; Additional U.S. Rule of Interpretation 1(a); 7010.90.50; EN 70.10; commonly used commercially for the conveyance or packing of goods; votive; 088123; 088742; 950245; CIE 322/64; T.D. 56111(75); sanctuary lamp - United States International Trade Commision Rulings

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HQ 950426

June 19, 1992

CLA-2 CO:R:C:M 950426 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.35

District Director
U.S. Customs Service
300 South Ferry St Terminal Island
Room 2017
San Pedro, California 90731

RE: Protest No. 2704-91-102479; glass container; glass candle holder; use provisions; principal use; Additional U.S. Rule of Interpretation 1(a); 7010.90.50; EN 70.10; commonly used commercially for the conveyance or packing of goods; votive; 088123; 088742; 950245; CIE 322/64; T.D. 56111(75); sanctuary lamp

Dear Sir:

This is in response to the request for Further Review of Protest No. 2704-91-102479, dated May 16, 1991, regarding the tariff classification of glass containers under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the glass containers were submitted for examination.

FACTS:

The articles under consideration are glass containers imported into the U.S. empty and then filled with candle wax. In some cases, the glass containers are silk screened before they are filled with candle wax. The glass containers are cylindrical in shape and are approximately 8 1/2 inches in height and 2 11/16 inches in diameter. They are made from low quality clear glass which holds 610 CC of wax. The protestant, "Candle Corporation of America", states that the glass containers are designed and used exclusively as a candle container. The protestant contends that the glass container should be classified under subheading 7010.90.50, HTSUS, which provides for "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)."

Upon importation into the U.S., you liquidated the glass containers under subheading 7013.99.35, HTSUS, as "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...Other glassware...Other...Other...Votive-candle holders."

ISSUE:

Are the glass containers classified as other glass containers for the conveyance or packing of goods under subheading 7010.90.50, HTSUS, or as votive-candle holders under subheading 7013.99.35, 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 headings and any relative section or chapter notes...." Headings 7010 and 7013, HTSUS, are both considered "use" provisions. A tariff classification controlled by use (other than actual use) is governed by principal use. Additional U.S. Rule of Interpretation 1(a), HTSUS.

Heading 7010, HTSUS, provides for bottles, vials and other containers of glass which are of a kind used commercially for the conveyance or packing of goods. Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System (HCDCS) 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.)." HCDCS, p. 933. 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.

HCDCS, p. 933- 934. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (1989).

The key phrase in this instance is "commonly used commercially for the conveyance" of solid 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).

The glass containers 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 containers at issue are not principally used to commercially convey candle wax. The glass containers are necessary for the consumer to use the product, candle wax. In use, the glass containers support the candle wax. The glass containers are not merely used as containers to convey the candle wax to the consumer and then discarded but, additionally, they serve a decorative purpose as 60 percent of the glass containers are silk screened with a design. The glass containers in this case are designed to be used with the product as well as to hold the product. Moreover, the protestant states that refills for the glass containers are available. However, we note that only one percent of the glass containers are refilled (for every 100 candles sold, approximately one refill is sold). As glass containers at issue hold the wax while it is being burned and are capable of being refilled for the same purpose, they are not properly classified under heading 7010, 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.

The principal use of the glass containers is as a candle holder for devotional purposes. According to the figures provided by the protestant, approximately 75 percent of the glass containers are decorated with religious ornamentation and are sold for use in religious settings. This type of tall candle holder is commonly known as a sanctuary lamp which is uniquely suited for devotional purposes. Votive candle glasses are generally of two types, large glasses which contain candles that burn for about a week and small glasses which hold candles that burn for a few hours. The large glasses are also known as "sanctuary lamps" and are sold with candles molded into them See, CIE 322/64 dated February 20, 1964, T.D. 56111 (75), 99 Treas. Dec. 108 (1964). The candle holders in this case are pictured on a catalogue page that portrays "Novena Candles". "Novena" is defined as "a devotion consisting of prayers or services on nine consecutive days" in the Roman Catholic Church. The Random House Dictionary of the English Language (1983). The candle holders are portrayed with devotional pictures of Mary, Jesus, and prayers, such as the Lord's Prayer. The glass containers are glass votive candle holders which are properly classified in subheading 7013.99.35, HTSUS.

HOLDING:

The glass containers are properly classified under subheading, 7013.99.35, HTSUS, as "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...Other glassware...Other...Other...Votive-candle holders."

This protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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