OT:RR:CTF:VS H269230 RMC
Port Director
U.S. Customs & Border Protection
1100 Raymond Boulevard, Suite 402
Newark, NJ 07102
Re: Application for Further Review of Protest 4601-14-101987; Classification; Subheading 9817.95.01
Dear Port Director:
This is in response to your correspondence dated September 3, 2015, forwarding the Application for Further Review (“AFR”) of Protest 4601-14-101987, timely filed by ABG Trading, Inc.
FACTS:
This AFR concerns the proper classification of Ohr EZ Light “Liquid Olive Oil Chanuka Candles” entered on October 24 and October 25, 2013 by ABG Trading, Inc.
The sample product contains 44 pieces and is labeled “Burns Approx. 3 Hours; Ready to Use; 100% Olive Oil; Use Cover as Standing Base for Traveling Use.” Therefore, although the packaging calls the product a candle, the product actually contains olive oil instead of wax. Furthermore, although the importer stated that the sample product contained a plastic disposable menorah, the Port notes that the sample it received did not contain a menorah. Several photos, including the one attached below, were submitted for our examination.
ABG classified the candles under subheading 3406.00.00, Harmonized Tariff Schedule of the United States (“HTSUS”), and also made a claim for duty-free treatment under subheading 9817.95.01, HTSUS, which grants duty-free treatment to “utilitarian articles of a kind used in the home in the performance of specific religious or cultural ritual celebrations for religious or cultural holidays, or religious festive occasions, such as Seder plates, blessing cups, menorahs or kinaras.”
On November 27, 2013, the Port of Newark sent ABG a CBP Form 28 asking for more information about the entry. ABG subsequently provided the Port with a sample of the product, bills of lading, and commercial invoices. ABG then stated that it was amenable to a reclassification under subheading 9405.50.40, HTSUS, but argued that the articles were still entitled to duty-free treatment under subheading 9817.95.01, HTSUS.
After examining the sample, the Port concluded that the articles were ineligible for duty-free treatment under subheading 9817.95.01, HTSUS because they are “not intended solely for use in the home, because the cover states that it can be used as a standing base for travel.” The importer agrees that the proper classification of the articles is under subheading 9405.50.40, HTSUS, but argues that the articles meet the requirements for duty-free treatment under subheading 9817.95.01, HTSUS.
ISSUE:
Whether the set of “Olive Oil Chanuka Candles” is eligible for duty-free treatment under subheading 9817.95.01, HTSUS.
LAW AND ANALYSIS:
Subheading 9817.95.01, HTSUS provides for duty-free treatment of articles classified under certain subheadings—including 9405.50.40, HTSUS—that meet the following description:
Utilitarian articles of a kind used in the home in the performance of specific religious or cultural ritual celebrations for religious or cultural holidays, or religious festive occasions, such as Seder plates, blessing cups, menorahs or kinaras.
The Port rejected ABG’s claim under subheading 9817.95.01, HTSUS because the product’s packaging states that the candles can be used while traveling. However, subheading 9817.95.01, HTSUS does not require that the article be used exclusively in the home. Instead, it merely requires that the article be “of a kind used in the home” in the performance of specific religious or cultural ritual celebrations.
Here, it is clear that the article is “of a kind used in the home.” The product is marketed for use with a menorah, which many Jewish families display at their homes during the Hanukkah holiday each year. Although the articles may also be used while traveling, this does not mean that they are not “of a kind used in the home” for purposes of eligibility under subheading 9817.95.01, HTSUS.
HOLDING:
The set of “Olive Oil Chanuka Candles” is eligible for duty-free treatment under subheading 9817.95.01, HTSUS.
Accordingly, this protest should be allowed. In accordance with the Protest/Petition Processing Handbook (CIS HB, December 2007), you are to mail this decision together with the CBP Form 19 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 the mailing of the decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Joanne Roman Stump
Acting Director, Commercial and Trade Facilitation Division