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