CLA-2 CO:R:C:M 954372 MMC
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
Commercial Rulings Division