HQ 964048

September 20, 2001

CLA-2 RR:CR:GC 964048 KBR

CATEGORY: Classification

TARIFF NO.: 9405.91.30

Port Director

U.S. Customs Service

810 Water Street

Laredo, TX 78040

RE: Internal Advice (IA) 00/10; Protest 2304-01-100233; Glass Candle
Holders

Dear Port Director:

The following is our decision regarding your memorandum
(CLA-2-OFO-LD:RP), dated March 17, 2000, forwarding Internal Advice (IA)
00/10, (Protest 2304-01-100233) which was initiated by counsel on behalf
of Lasting Products, Inc., and which concerns the classification, under
the Harmonized Tariff Schedule of the United States (HTSUS), of glass
articles used for holding candles. Five samples of the glassware were
provided for our examination as well as a wood and metal sconce. This
ruling concerns only the glassware. A meeting was held with the counsel
for the importer on July 17, 2001.

FACTS:

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 candle holder or sconce. Candles will be inserted into
the glass piece. One of the samples is tinted a rose color. Two of the
samples 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 then
taper back in towards the top and then flare out. The openings of these
2 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 glass articles were entered under subheading 9405.91.60, HTSUS, as
lamps or lighting fittings not elsewhere specified, parts of glass,
other. However, the importer initially claims that the articles are
\"votive\" candle holders under subheading 7013.99.35, HTSUS.
Alternatively the importer claims the glass articles should be
classified under subheading 9405.91.60, HTSUS, as parts of lamps and
lighting fittings of glass, other. Your office believed the correct
classification was under subheading 9405.91.30, HTSUS, as parts of
glass, globes or shades. In the meeting held on July 17, 2001, and in
telephone conferences, counsel for the importer claimed that many
shipments have been entered unquestioned as votive candle holders under
subheading 7013.99.35, HTSUS. However, no information was submitted as
to whether any of those shipments were examined or subject to \"bypass\"
procedures. In an additional submission dated July 19, 2001, counsel
listed 23 entries of the glass articles dated from May 9, 2000 through
July 25, 2000, claiming the importer sought entry under subheading
9405.91.60, HTSUS. In a submission dated July 5, 2001, counsel provided
definitions of \"votive candle\" and \"votive holder\" from the National
Candle Association\'s website; and a letter dated February 24, 1987,
concerning adding a provision for votives into the HTSUS.

ISSUE:

What is the classification under the HTSUS for the subject glass
articles?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined according to the terms of the headings and
any relative section or chapter notes. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in accordance
with subsequent GRI.

GRI 6 provides, in pertinent part, that \"\... the classification of
goods in the subheadings of a heading shall be determined according to
the terms of those subheadings and any related subheading notes and,
mutatis mutandis, to the above rules, on the understanding that only
subheadings at the same level are comparable.\"

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:

7013.99 Other:

Other:

7013.99.35 Votive candle holders

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

9405.91.60 Other

Counsel for the importer claims that the imported glass articles are
\"votive\" candle holders. Votive candle holders are provided for under
subheading 7013.99.35, HTSUS. However, the subject glass articles are
only part of a composite article. Heading 7013 does not contain a parts
provision. The court observed in Riekes Crisa Corp. v. United States, 10
CIT 235, 245 (1990), 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).) Customs found that since
heading 7013 does not contain a parts provision, glass articles which
are only part of a composite good must be classified elsewhere. See HQ
964629 (April 4, 2001). Therefore, the instant glass articles cannot be
classified in heading 7013.

We next turn to whether the glass articles are globes or shades under
subheading 9405.91.30, HTSUS. Customs has ruled that glass articles
similar to those in the instant case, when imported attached to a sconce
(which the instant articles are not) are a composite good. Pursuant to
GRI 3(b), the classification of a composite good is determined on the
basis of the component which gives the good its essential character. The
essential character for establishing the correct classification of the
composite glass piece and sconce was determined by the glass component,
not the sconce. In finding that the essential character of the composite
good was determined by the glass component, Customs found that the
composite good was a candle holder classifiable under subheading
9405.50.40, HTSUS, as a non-electrical lamp. See HQ 962860 (November 16,
1999); HQ 960503 (July 9, 1998); HQ 960962 (July 15, 1998); HQ 956347
(August 30, 1994); HQ 960819 (July 16, 1998). Since the instant glass
articles are only a part of the full candle holder, they must be
included under the parts provision, not subheading 9405.50.40, HTSUS as
in the cases above.

Counsel asserts that the articles are not globes or shades because the
articles \"hold\" the candle. Further, counsel differentiates the shade
and globe as articles which cover and deflect the light and reduce the
glare but do not \"hold\" the light source. See, e.g., Max Haber v
United States,62 Cust. Ct. 746 (1969); Elite, Import Co., Inc. v United
States, 11 Cust. Ct. 104 (1943); Lightolier Co. v United States, 1 Cust.
Ct. 134 (1938). Finally, counsel argues that the instant glass articles
hold the candle, but do not deflect the light or reduce the glare.

Webster\'s New Collegiate Dictionary, 1979, defines \"shade\" as \"a
device partially covering a lamp so as to reduce glare\". The Random
House College Dictionary, 1973, defines shade as \"a lampshade\.... to
cover or screen (a candle, light, etc.). The Random House Dictionary
defines \"lamp shade\" as \"a device, fitted over a lamp, for reflecting
or partially cutting off its light.\" \"Lamp\" is defined as \"a device
providing an isolated source of artificial light.\" Id. The American
Heritage(r) Dictionary of the English Language; Fourth Edition, 2000,
defines \"globe\" as \"A spherical or bowllike container, especially a
glass cover for a light bulb. Websters New International Dictionary
defines \"globe\" as \"an appliance for protecting a lamp or diffusing
its light.\"

In this situation, each of the glass articles are \"bowllike\". The
glass articles act as a \"cover\" to \"protect\" the candle flame from
being blown out. Further, one of the samples is tinted a rose color
which will affect the light produced and reduce the glare from the
candle flame. The texture of the clear glass articles will also act to
deflect the light produced. Therefore, the glass articles are
classifiable under subheading 9405.91.30, HTSUS, as lamps and lighting
fittings not elsewhere specified or included, parts, of glass, globes
and shades, other.

HOLDING:

The glass articles are classifiable under subheading 9405.91.30, HTSUS,
as lamps and lighting fittings not elsewhere specified or included,
parts, of glass, globes and shades, other.

The protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division

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