> HQ 965776

# October 18, 2002

> CLA-2 RR:CR:GC 965776 AML
>
> **CATEGORY:** Classification
>
> **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").
>
> **FACTS:**
>
> 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.

**ISSUE:**

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?

**LAW AND ANALYSIS:**

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.]{.underline}* 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.]{.underline}* 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]{.underline} (1968); see [also Webster's New
World Dictionary, Third College Edition]{.underline}, 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]{.underline}, pg.
> 224 (1st ed. 1984), and as a holder for a candle; candlestick, [The
> Random House Dictionary of the English Language]{.underline}, 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,]{.underline} 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.

**HOLDING**:

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.

**EFFECT ON OTHER RULINGS:**

HQ 964048 is hereby AFFIRMED.

> Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division