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