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HQ 960022




May 1, 1998

CLA-2 RR:CR:GC 960022 JRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.35

Port Director of Customs c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Protest 1001-96-107111; Glass votive-candle holders; principal use; Yahrzeit light, Jewish memorial candle holder; HQ 957982; HQ 950426; HQ 088742; HQ 950245; HQ 956108; 7010.90.50; 9405.50.40

Dear Port Director:

The following is our decision on the referral by your office, dated November 26, 1996, of the above-referenced protest filed, on behalf of Prayer Candle Co., by Harold I. Pepper Co., Inc. on September 11, 1996.

FACTS:

The imported merchandise made in Portugal was entered in the Port of New York on November 15, 1995, under subheading 7010.90.50, Harmonized Tariff Schedule of the United States (HTSUS), as glass containers. The entry was liquidated on July 5, 1996, as general purpose candle holders under subheading 9405.50.40, HTSUS, the provision for non-electrical lamps and lighting fittings. A timely protest under 19 U.S.C. 1514 against the liquidation was filed on September 11, 1996.

The protestant claims that the merchandise is properly classified as glass containers under subheading 7010.90.50, HTSUS, because they are imported into the United States empty and then filled with candle wax and a wick. The merchandise is described on the commercial invoice as "empty glass bottles (Star Candle 200ml)." On the Customs Form 19, the protestant states that after its use is fulfilled, the glass container is discarded and not re-used. The protestant requests that the entry be reliquidated with a free rate of duty.

Two samples were submitted for our review, one in its condition as imported and one in its condition as sold, that is, one filled with wax and a wick and affixed with a label containing symbols for the "Star of David" and the following words, written in English: "Yahrzeit Memorial Lamp, Standard Tumbler." Under these words, Hebrew letters appear, which translate in English as follows: "For Yahrzeit and Day of Atonement." The samples, which resemble small drinking glasses, are made of clear low quality glass with a smooth top-half and an exterior, beveled square-pattern on the bottom-half. The samples measure approximately 4 inches tall and possess an exterior mouth diameter of approximately 2 and 5/16 inches. The lip of the glass is irregular. It has molded seams and manufacturing information is embedded on the bottom. The filled-glass sample contained 2« inches of white paraffin wax and a 2-inch exposed wick.

According to additional information submitted by the importer on January 27, 1997, all the merchandise at issue is marketed only as candles for religious purposes, specifically 75% are Memorial Lamps for Jewish trade and 25% are for Catholic trade and churches.

ISSUE:

Whether the empty glassware is properly classified as other containers used for the conveyance or packing of goods under subheading 7010.90.50, HTSUS, as non-electrical lamps and lighting fittings under subheading 9405.50.40, HTSUS, or as votive-candle holders for devotional (i.e., religious or memorial) purposes under subheading 7013.99.35, HTSUS.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification is determined according to the terms of the headings of the tariff schedule and any relevant section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The subheadings under consideration are as follows:

7010.90.50 [c]arboys, 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: [o]ther: [o]ther containers (with or without their closures). The general column one is a free rate of duty.

9405.50.40 [l]amps 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: [n]on-electrical lamps and lighting fittings: [o]ther: [o]ther. The general column one rate of duty is 7.3 percent ad valorem.

7013.99.35 [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): [o]ther glassware: [o]ther: [o]ther: [v]otive-candle holders. The general column one rate of duty is
6.6 percent ad valorem

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.

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), 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.)." Generally, the types of containers covered by this heading include bottles, jars, pots, and similar containers that are used for chemical products (acids), beverages, certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), polishes, cleaning preparations, oils, meat extracts, perfumery preparations, pharmaceutical products, inks, glues, etc. 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 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. Since the glasses at issue are principally used to hold the wax while it is being burned, the glasses are not properly classified under heading 7010, HTSUS. The form of the merchandise at issue resembles the form of a drinking glass or "tumbler;" however, the beveled design on the lower portion of the glass, the molded seams, the manufacturing information embedded in the bottom, and the slightly irregular shape of the lip indicate that it is not an ordinary drinking glass. These design factors are strong indicators that the glass will function as a candle holder. 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. In prior rulings, Customs has held that similar glasses were not principally used as the class or kind of merchandise to commercially convey candle wax as contemplated by heading 7010, HTSUS. See HQ 957982, dated August 3, 1995; HQ 954308, dated June 6, 1994; and HQ 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. The importer's argument for classification in heading 7010, HTSUS, is incorrect since this merchandise is principally used as a candle holder.

The three rulings cited by the Port Director, namely, HQ 954308, dated June 6, 1994, HQ 955935, dated March 14, 1994, and HQ 955281, dated July 29, 1995, classified similar candle holders which were imported empty and then filled with candle wax and a wick, as non-electrical lamps and light fittings under subheading 9405.50.40, HTSUS. In all three rulings, the importers had not submitted sufficient evidence to show, at the time of importation, that these glasses were to be principally used for burning candle wax for devotional purposes. As such, Customs found that the candle holders were properly classified as general purpose candle holders under Heading 9504. If a product is imported in a form which is principally used to hold any type of candle (i.e., a general purpose candle holder) and no evidence is presented to show that the candle holder is principally used to hold candles dedicated for religious or memorial purposes, subheading 9405.50.40, HTSUS, will apply. When candle holders are imported without religious pictures or motifs, they will not be simply regarded as votive candle holders even though some or all of these items imported on a particular shipment may later be decorated with religious symbols or pictures. For example, in HQ 955281, approximately half the candle holders were sold to be used for "religious purposes," while the remainder was to be used for restaurant or patio purposes.

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. Subheading 7013.99.35, HTSUS, provides for glass votive-candle holders. Customs has held in prior rulings that a glass votive-candle holder is a glass candle holder principally used in churches where the candles are burned for devotional purposes, or used in the home for commemorative or religious purposes. See HQ 956108, dated May 16, 1994; HQ 957982, dated August 3, 1995; and HQ 950245, dated December 10, 1991. Additionally, we have held that votive-candle holders are generally of two types, large glasses or "sanctuary lamps" which are uniquely suited for devotional purposes as they contain candles that burn for about a week and small glasses which hold candles that burn for a few hours. See HQ 950426, dated June 19, 1992. The Yahrzeit lamp is used in the home to hold a candle lit in memory of a deceased relative. The unique form of this product is indicative of a religious/memorial candle holder.

We are of the opinion that, based upon the evidence submitted, the subject glasses are principally used as votive-candle holders even though they are imported empty. The evidence provided, such as the Yahrzeit Memorial Lamp label that is affixed to the glass after importation, and the fact that the glass items are marketed only as candles for religious purposes, with 75% of the candles being Memorial lamps for the Jewish trade and 25% for the Catholic trade and churches, demonstrates that the protested merchandise is of the class or kind principally used to hold candles dedicated for religious or memorial purposes. Also, the size and the "form" of the glasses, i.e., four inches tall and a little over two inches in diameter, is indicative of the common votive-candle holder used in churches and homes for devotional purposes. Therefore, the glasses are properly classified under subheading 7013.99.35, HTSUS.

HOLDING:

The four-inch glass containers are properly classified under subheading, 7013.99.35, HTSUS, as votive-candle holders which has a column one rate of duty of 6.6% ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance and refund of duty.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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. The Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels within the 60 days from the date of this decision.

Sincerely,

John Durant, Director
Commercial Rulings Division

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