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HQ 954372




September 22, 1994

CLA-2 CO:R:C:M 954372 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

Mr. Robert E. Burke
Ms. Michelle E. McGuire
Barnes, Richardson and Colburn
200 East Randolph Drive
Suite 7920
Chicago, Illinois 60601

RE: Reconsideration of HRL 951391; HRLs 088123, 088742, 950245, 950426, 944308, 956108; 7010, 7013.99.35; Kraft, Inc., v. United States, G. Heilman Brewing Co. v. United States, United States v. Carborundum Company.

Dear Mr. Burke and Ms. McGuire:

This is in response to your letter dated August 22, 1993, restating your request on behalf of Candle Corporation of America, for reconsideration of Headquarters Ruling Letter (HRL) 951391 dated August 10, 1992. HRL 951391 classified 4" glass jars as drinking glasses under heading 7013 of the Harmonized Tariff Schedule of the United States (HTSUS) specifically 7010.29. Your letter suggests that the jars are classifiable as either containers under heading 7010, HTSUS, or under heading 7013, HTSUS, specifically 7013.99, as votive candle holders. Finally, your letter withdraws your request for reconsideration of HRL 950426.

FACTS:

On March 28, 1994, a letter was sent to Candle Corporation of America, notifying them of Customs intention to re-examine the classification determination regarding 4" glass jars in HRLs 088123 and 951391. Additionally, copies of the proposed revocation together with an invitation to comment on the proposed classification was included.

In HRL 956108, dated May 16, 1994, Customs revoked HRL 951931, and classified the articles under subheading 9405.50.40, HTSUS, as non-electrical lamps and light fittings. HRL 956108 specifically stated that no evidence had been provided regarding the article's possible classification under subheading 7013.99.35, HTSUS, as a votive candle holder.

However, at the time of HRL 956108's publication, additional information regarding the devotional nature of the 4" glass jar was before Customs. It had been presented in this request for reconsideration and not as comments to the Customs Bulletin Notice. Because the additional information had not been presented during the comment period, Customs was unaware that it applied in HRL 956108.

According to the importer, the subject articles have tops about 2 3/4 inches in diameter, which taper to approximately 2 inches in diameter at the bottom. They are made of low quality clear glass. They are imported empty and sold to distributors. The distributors fill them with approximately 250 cc of wax and a wick. After importation, some are stenciled with religious motifs.

According to your submissions, over 80% of these filled jars are sold to retailers located in predominantly Spanish speaking areas of the United States. They are then sold to an ultimate consumer whom you believe uses them for devotional purposes.

ISSUE:

Whether the subject jars are classifiable as non-electrical lamps and light fittings or as votive candle holders under the HTSUS.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with 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.

The headings under consideration are as follows:

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.

Subheading 7013.99.35, HTSUS, is considered a use provision. There are two types of classification by use:

(1) according to the actual use of the imported article; and (2) according to the use of the class or kind of goods to which the imported article belongs.

Tariff classification of goods controlled by actual use is specifically provided for in sections 10.131-10.139, Customs Regulations [19 CFR 10.131-10.139]. According to these regulations, an actual use provision is satisfied if: (1) such use is intended at the time of importation, (2) the article is so used, and (3) proof of such use is furnished within three years after the date the article has been entered. No language present in heading 7013, HTSUS, or any of its subheadings, indicates that they are actual use provisions. Therefore, heading 7013, HTSUS and it subheadings are headings and subheadings which classify articles according to the class or kind of goods to which the article belongs.

Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. A few tariff provisions expressly state that classification is based on the use of the class or kind of goods to which the imported article belongs. However, in most instances, this type of classification is inferred from the language used in a particular provision.

When an article is classifiable according to the use of the class or kind of goods to which it belongs, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:

[i]n the absence of special language or context which otherwise requires-- (a) 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions.

However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See: Kraft, Inc., v. United States, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Tariff classification under subheading 7013.99.35, HTSUS, is determined by the use of the class or kind of articles to which the imported merchandise belongs. As such, it is considered a provision controlled by Additional U.S. Rule of Interpretation 1(a), HTSUS.

We have held that glass votive-candle holders are glass holders principally used for commemorative, devotional or religious 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 29, 1992.

The additional information provided for reconsideration states that the subject articles are imported empty and sold to distributors. The distributors fill them with approximately 250 cc of wax and a wick. Some are also stenciled with religious motifs. Additionally, according to your submissions, over 80% of these filled holders are sold to retailers located in predominantly Spanish speaking areas of the United States. They are then sold to an ultimate consumer whom you believe uses them for devotional purposes.

This additional information while informative does not demonstrate how, at the time of importation, these styles are distinguishable as being used for devotional purposes. The candle holders are imported empty. Additionally, at importation, they contain no stenciled religious motifs. Their ultimate purchase for devotional purposes is not conclusively determinable when imported. Finally, they are nearly identical in appearance to the pixxi and continental styles of HRL 944308, dated June 6, 1994, which held that various 4 and 5 inch candle holders were not classifiable as votive candle holders.

Because these articles are not, at the time of importation, distinguishable as being used for a devotional purposes, they are classifiable in subheading 9405.50.40, HTSUS, as non-electrical light fittings.

HOLDING:

The 4" glass containers are classified under subheading 9405.50.40, HTSUS, as non-electrical light fittings, which has a column one rate of duty of 7.6% ad valorem.

Sincerely,

John Durant, Director

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