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HQ 955281




July 29, 1995
CLA-2 C0:R:C:M 955281 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40

Mr. Derek Brown
California Glass Company
155 98th Ave.
Oakland, California 94603

RE: Glass candle holders; 7013.90.35; HRLs 088742, 950245, 950426, 954308; Additional U.S. Note 1(a); Kraft, Inc, v. United States, G. Heilman Brewing Co. v. United States, United States v. Carborundum Company.

Dear Mr. Brown:

This is in response to your letter dated July 2, 1993, requesting a binding ruling, on behalf of the California Glass Company, for several styles of glass candle holders under the Harmonized Tariff System of the United States (HTSUS). A representative sample and catalogues were submitted for our review. We regret the delay in responding.

FACTS:

The glass candle holders, which will be made in Taiwan, are described as follows:

1. #340 Pixxi has a beveled diamond pattern, is available in colored or clear glass, is 5 inches tall, burns up to 75 hours, has an overflow capacity of 298 ml and an exterior mouth diameter of 66 mm.

2. #303 Continental is 5 inches tall, is available in colored or clear glass, burns up to 50 hours, has an overflow capacity of 256 ml and an exterior mouth diameter of 66 mm. It appears to have speckled groves molded into its surface.

3. #3505 which is available in colored or clear glass, burns up to 72 hours and resembles the #303 Continental's design in all physical aspects.

4. #547 burns up to 50 hours, and resembles the #340 Pixxi style in all physical aspects.

After importation, all of the glass candle holders are filled with wax and a wick and some are then stenciled with a religious motif and sold for devotional purposes. According to your letter of September 22, 1993, approximately half of the candle holders will be sold to be used for "religious" purposes. The others will be used for restaurant or patio purposes.

ISSUE:

Whether the candle holders are classifiable as non-electric light fittings or as votive candle holders.

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 subheadings under consideration are as follows:

7013.99.35 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.

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 use of the class or kind of goods to which the imported article belongs; and

(2) according to the actual use of the imported article.

Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. This tariff provision expressly states that classification is based on the use of the class or kind of goods to which the imported article belongs.

If 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. The Court of International Trade (CIT) has provided additional criteria which are indicative, but not conclusive of whether a particular article qualifies as a member of a class. These criteria are applied, according to Additional U.S. Note 1(a), at the time of importation. 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, recognition in the trade of this use. Kraft, Inc, v. United States, USITR, 16 CIT ___, Slip Op. 92-93 (June 24, 1992), G. Heilman Brewing Co. v. United States, USITR, 14 CIT ___, Slip Op. 90-87 (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. 97.

Both the #340 Pixxi and #303 Continental styles were ruled on in Headquarters Ruling Letter 954308, dated June 6, 1994. In that ruling, we reviewed the classification of both these styles as either, drinking glasses, non-electric light fittings, or votive candle holders. Customs determined that, after considering the above mentioned factors, that these styles did not belong to the class "drinking glasses".

Additionally, Customs explained that 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.

Finally, HRL 954308 held that it had not been demonstrated that the principal use of the styles "#340 Pixxi and #303 Continental", as a whole, were for devotional purposes. Therefore, the articles were held to be classifiable as non-electrical light fittings.

Like the #340 Pixxi and #303 Continental styles, styles #3505 and #547 are imported empty. Additionally, at importation, they contain no stenciled religious motifs. Finally, they are nearly identical in appearance to the #340 Pixxi and #303 Continental styles. Because these styles 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 #340 Pixxi, #303 Continental, #3505 and #547 styles are classifiable under subheading 9405.50.40, which provides for non-electrical light fittings and have a column one rate of duty of 7.6% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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