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HQ 965776

October 18, 2002

CLA-2 RR:CR:GC 965776 AML


TARIFF NO.: 9405.91.30

Mr. John B. Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55th Street
New York, New York 10022-3219

RE: Reconsideration of HQ 964048

Dear Mr. Pellegrini:

This is in reply to your letter dated July 11, 2002, on behalf of Lasting Products, Inc., in which you requested reconsideration of Headquarters Ruling Letter (“HQ”) 964048, dated September 21, 2001. You state that your request “is made in light of the position asserted by the Government in The Pomeroy Collection, Inc. v. United States, Slip Op. 02-57 (June 19, 2002) in which a composite candleholder was held classifiable in heading 7013” of the Harmonized Tariff Schedule of the United States (“HTSUS”).


The articles under consideration were described in HQ 964048 as follows:

The subject articles are glass pieces in several shapes and sizes which contain a “lug” projecting from the bottom which prevents the articles from standing on their own. The articles are designed to be inserted into some type of candleholder or sconce. Candles will be inserted into the glass piece. One of the samples is tinted a rose color. Two of the articles are bell-shaped with the opening diameter of 4 inches and a depth of 4 inches. Two of the samples expand out in the center and then taper back in towards the top and then flare out. The openings of these two articles are approximately 2 and 2 1/4 inches in diameter and 3 1/4 and 4 1/4 inches in depth, respectively. The fifth article has a cylindrical shape with an opening diameter of 3 inches and a depth of 6 inches.

The articles were classified in HQ 964048 under subheading 9405.91.30, HTSUS, which provides for lamps and light fittings not elsewhere specified or included, parts, of glass, globes and shades, other.

In the original submissions and in subsequent meetings with Customs on behalf of your client in HQ 964048, you repeatedly referred to the articles, as you do in the request for reconsideration, as “votive candle holders.” Also clearly established by your submission and in subsequent communications is that the articles are designed and intended to be glass parts of candleholders, they cannot stand alone, and they have no other intended use other than as candleholders.

Finally, we note that you maintain that the articles are classifiable under subheading 7013.99.35, HTSUS.


Whether, in light of the “Government’s position” in and the holding of The Pomeroy Collection, Inc. v. United States, Slip Op. 02-57 (June 19, 2002)(hereinafter “Pomeroy”), the subject merchandise is properly classifiable as parts of candleholders under heading 9405, HTSUS; or whether Pomeroy requires that the articles be classified under heading 7020, HTSUS, which provides for other articles of glass?


The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]”

Preliminarily, it is necessary to clarify what the Pomeroy decision does and does not stand for and what influence or bearing, if any, the “Government’s position” in that matter has upon the determination made in HQ 964048. At issue in Pomeroy was the classification of a “Medium Romano Floor Lamp Rustic” – a composite article that consisted of a glass vessel with a rounded bottom and a wrought iron pedestal or stand which stands approximately 30 inches high and was designed to cradle (that is, to hold and support) the glass vessel. Pomeroy, Slip Op., pp. 2-3. When so situated, the vessel is used to hold a candle or some other object such as flowers, a plant, or a bottle of wine. Id. at pp. 3-4. After discussing the composite article’s similarity to the subject articles in two prior rulings (HQ 956810, dated November 28, 1994 and HQ 957413, dated March 31, 1995), the Court held that based on GRI 3(b), the article was classifiable under subheading 7013.99.90, HTSUS, and granted the government’s cross motion for summary judgment. In so holding, the Court found that the subject articles in HQ 956810 and 957413 were distinguishable from that at issue in Pomeroy and that the articles in Pomeroy were classifiable under heading 7013, HTSUS, by virtue of the “legal fiction” created by GRI 3(b) (“in which a composite article is classified as if it consists wholly of the component which imparts the overall good with its “essential character’.”) Id. at 9 and 15, respectively.

We too find that article that is subject of Pomeroy is distinguishable from the articles classified in HQ 964048 for the reasons enunciated by the Pomeroy Court and those reasons set forth below.

The HTSUS provisions under consideration are as follows:

7013 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 (con.):
7013.99 Other.

7020.00 Other articles of glass:
7020.00.60 Other.

9405 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: Parts:
9405.91 Of glass:
Globes and shades:
9405.91.30 Other.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The articles are prima facie classifiable in Chapter 70, HTSUS, which provides for articles of glass (we note that in Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the Court stated that "all articles of glass are generally defined as ‘glassware’." (63 Cust. Ct. at 250 citing Webster’s Third New International Dictionary (1968); see also Webster’s New World Dictionary, Third College Edition, at 573 (1988), defining "glassware" as "articles made of glass").

Subheading 7020.00.60, HTSUS, is a so-called "basket" provision within Chapter 70, in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988)). Therefore, we must first address the competing provision within Chapter 70, subject to the section and chapter Notes. Only if classification in that provision is precluded will we address classification in heading 7020, HTSUS.

Heading 7013, HTSUS, provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).” Note 1(e) to Chapter 70, HTSUS, provides that the Chapter does not cover “lamps or light fittings . . . or parts thereof of heading 9405[.]” Thus, if it is determined that the articles constitute or are parts of a candleholder, the articles cannot be classified under heading 7013, HTSUS.

Similarly, the articles are prima facie classifiable under subheading 9405.91, HTSUS, which provides for parts of candleholders. The EN to heading 9405, HTSUS, states that lamps and light fittings of this group can be composed of any material and use any source of light, including candles. In addition, EN 9405 states that this heading covers “in particular: (6) [c]andelabra, candlesticks, and candle brackets[.]”

We have previously considered the definitions of the terms used in the heading and EN. In Headquarters Ruling Letter (HQ) 957412, dated August 1, 1995, we stated that:

[T]hese rulings (HQ 954308 dated June 6, 1994, HQ 955935 dated May 16, 1994, HQ 953016 dated April 27, 1993, HQ 088742 dated April 22, 1991, and HQ 089054 dated August 2, 1991) held that the terms "candlestick", "candlestick holder", and "candle holder" are interchangeable. Candle holder has been defined as a candlestick, Webster's II New Riverside University Dictionary, pg. 224 (1st ed. 1984), and as a holder for a candle; candlestick, The Random House Dictionary of the English Language, pg. 216 (1st Ed. 1983). Candlestick has been defined as a utensil for supporting a candle, whether elaborately made or in the common form of a saucer with a socket in the center, Webster's New International Dictionary, pg. 390 (2d ed. 1939). Reference to lexicographic authorities is proper when determining the meaning of a tariff term. Hasbro Industries, Inc. v. U.S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v. U.S., 69 CCPA 128, 673 F.2d 1268 (1982).

In HQ 964048 we discussed at length various lexicographic resources in defining the terms “shade” and “globe” in rendering that ruling. Further, Customs file shows that you presented various definitions regarding the classification of such articles on behalf of your client. See HQ 964048 at page 4.

Contrary to your assertions, the articles that are subject of HQ 964048 are distinguishable from the articles classified in HQ 957413. In the latter ruling, a floor standing glass vase with a metal stand was classified in heading 7020, HTSUS. The rationale behind the ruling is that that glass articles were either parts of composite decorative, utilitarian goods or parts thereof, and because heading 7013 does not contain a parts provision, the articles fell to be classified in heading 7020. (See also Riekes Crisa Corp v. United States, 14 CIT 235, 245 (1990), in which the Court observed that “under well established principles of customs law, ‘a tariff provision which does not specifically provide for parts does not include them.’” (citing Glass Prods. v. United States, 10 CIT 253, 255, 641 F. Supp. 813, 814 (1986).) The glass “votive candleholders” (as you repeatedly referred to them when you sought the ruling in HQ 964048), on the other hand, are designed, intended and are capable of being used, upon importation, as parts of candleholders.

Headings 7013 and 9405, HTSUS, as applicable to the merchandise under consideration, are controlled by use (other than actual use) (see Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT 1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. 20, 25, 748 F.2d 663 (1984)). If an article is classifiable according to the use of the class or kind of goods to which it belongs, as is true of these provisions, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:

In 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 in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 C.F.R. §10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).

This office has exhaustively reviewed the principal use of articles such as those under consideration (glassware in various forms contended to be principally used as candle holders). In the March 25, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12, page 32, Customs issued a notice under 19 U.S.C. §1625 proposing to modify or revoke two Headquarters and five New York ruling letters, to classify the articles described therein as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS, instead of as candle holders in subheading 9405.50.40, HTSUS. The comments submitted in response to this notice provided considerable information regarding the "pertinent factors" (see above) related to the principal use of the class or kind of goods to which the goods considered in the proposed rulings belong. Based on this information, Customs has concluded that the class or kind for goods such as these and similar containers is defined by the form or shape of the article (e.g., bell-shape, similar to bell-shape, flower pot shape, tulip or flower petal shape, cube or rectangle shape, and possibly other shapes) and its size. We have found there to be a clear distinction between glassware used as candleholders and that used for general indoor decoration based on the size of the articles, in the absence of other pertinent evidence or information. Glassware of those forms with an opening of 4 inches or less in diameter and a height or depth of 5 inches or less is used substantially more frequently as a candle holder than for any other purpose, according to the information we have obtained, and larger glassware is used substantially more frequently for general indoor decoration.

The articles at issue fall squarely within the criteria for candleholders and parts thereof. The evidence presented and relied upon when we rendered HQ 964048 established that the articles were designed and intended to be glass parts of candleholders. Further, we note that the instant articles, because of their size, are capable of functioning only as glass parts of candleholders (and axiomatically that any other prospective use would constitute a “fugitive” use). These unrefuted facts further distinguish the articles from those that were subject of the Pomeroy decision as well as those that were subject of HQ 956810 and 957413, cited above.

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In their condition as imported, the subject articles of HQ 964048 are substantially complete. That is, the articles do not require further working to fulfill their “function;” one needs only to place the articles, as intended, on the stand and place a candle in them.

GRI 2(a) provides, in pertinent part, that:

2(a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

We find that, in their condition as imported, and in accordance with GRI 2(a), the articles have the essential character of a glass part of a candleholder as contemplated by subheading 9405.91, HTSUS. Classification within Chapter 70 (i.e., under headings 7013 or 7020, HTSUS), by virtue of Note 1(e) to Chapter 70 (see above) is thereby precluded.


At GRI 2(a), the glass articles are classifiable under subheading 9405.91.30, HTSUS, which provides for other glass parts of non-electric lamps, other.


HQ 964048 is hereby AFFIRMED.


Myles B. Harmon, Acting Director

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