CLA-2 RR:CR:GC 964048 KBR
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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