CLA-2 OT:RR:CTF:TCM H238493 HvB
Kiersten Schumacher
QVC, Inc.
Studio Park
1200 Wilson Drive
West Chester, PA 19380-4262
RE: Tariff classification of a Glass Owl Hurricane Vase with Flameless LED Candle
Dear Ms. Schumacher:
This is in response to your e-ruling request made on November 6, 2012, to U.S. Customs and Border Protection (CBP), National Commodity Specialist Division in New York for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a Glass Owl Hurricane Vase with Flameless Candle (“Glass Owl Hurricane”).
Per your request, the submitted sample will be returned to you.
FACTS:
The merchandise that is the subject of this ruling consists of an ornamental colored glass vase and a flameless Light Emitting Diode (“LED”) candle, which are packaged together in a cardboard box for retail sale. The box also contains a bag of irregularly shaped glass beads and a sheet containing instructions on how the product is to be used. The enclosed instructions state that the beads are intended to be used to create a level surface to secure the candle inside the vase.
The glass vase features several decorative elements. The glass has a blue-green tint, which you state is colored prior to solidification. During a state of semi-solidification, a glass ribbon-like effect is added and the item is shaped into its final “owl-like” form such that the rims of the vase dip slightly at the front of the vase to give the vase an owl’s “nose” and rise at the sides of the vase to give the vase owl “ears”. In between the nose, glass “eyes” are pressed onto the semi-solidified glass’s face. The eyes have their own ribbon like effect.
The flameless LED candle operates on a battery and operates on a timer mode that enables the candle to operate for four or eight hours at the same time of day each day. As noted on the packaging, the candle when “lit” emits a soft “warm glow.”
ISSUE:
What is the proper tariff classification under the HTSUS of the Glass Owl Hurricane Vase with Flameless Candle?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative 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 2 through 6 may then be applied in order.
The 2013 HTSUS provisions under consideration in this case 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):
9405 Lamps and lighting fixtures including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated nameplates and the like, having a permanently fixed light source, and parts thereof:
Note 1 to Chapter 70 provides, in relevant part:
This chapter does not cover:
* * *
lamps or lighting fittings, illuminated signs, illuminated name-plates or the like, having a permanently fixed light source, or parts thereof of heading 9405[.]
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System at the international level. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Note 1(e) to Chapter 70, HTSUS excludes from classification under chapter 70 “lamps or lighting fittings”. Accordingly, a determination must first be made as to whether the Hurricane Owl Hurricane Vase is classifiable in heading 9405, HTSUS. In 2008, the Court of International Trade examined similar merchandise in Pomeroy Collection, Inc. v. United States, 32 C.I.T. 526, 559 F. Supp. 2d 1374 (Ct. Int’l Trade 2008) (“Pomeroy I”); see also Pomeroy Collection, Inc. v. United States, 783 F. Supp. 2d. 1257 (Ct. Int’l Trade 2011) (“Pomeroy II”). At issue in Pomeroy I was merchandise consisting of glass vessels (in various sizes), rustic iron stand, packets of small rocks or sand, and candles. Ibid at 1379-1381. The items were packaged together for retail sale. Under Pomeroy I, if the subject Glass Owl Hurricane Vase is prima facie classifiable in heading 9405, HTSUS as a “lamp”, then by operation of Note 1(e) to Chapter 70, it cannot be classified in heading 7013, HTSUS. Id. at 1385.
Although the term “lamps” is not defined in the HTSUS, CBP has previously determined that a “lamp” is a device which provides an isolated source of heat or light. See Headquarters Ruling Letter (“HQ”) H068435, dated October 16, 2009 (snowflake pathway markers); HQ H042586, dated January 29, 2009 (fiber optic lamp), HQ 966952, dated August 18, 2004 (litecube), and HQ 965248, dated July 26, 2002 (bubble lights) (citing The Random House College Dictionary (1973) at 752 and Webster’s New Collegiate Dictionary (1979) at 639). In HQ 954845, dated May 26, 1994, CBP employed the use of the dictionary definitions of lamps, noting that:
"Lamp" is defined in The Random House College Dictionary, Random House, Inc. (1973), at 752, as "a device providing an isolated source of artificial light". Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1979), at 639, defines "lamp" as "any of various devices for producing light or heat".
The instant merchandise is within the common and commercial meaning of the term “lamp” in that it is a source of light, as cited above. When lit, the candle emits a “warm glow,” as noted on the packaging. Although the vase has decorative elements such as the owl’s face, the presence of these elements does not “preclude[e] classification... under heading 9405”. Pomeroy I, 559 Supp. 2d at 1392. In other words, lamps can be both ornamental and functional. Although this lamp has additional elements, the vase and such elements are complementary to its function of illumination. Thus, as the court observed in Pomeroy I, “Just as a ‘motor vehicle is a ‘motor vehicle,’ so too a ‘lamp’ is a ‘lamp’, no matter how simple or elaborate it may be. Id. Furthermore, we note that CBP has previously classified LED candles in heading 9405, HTSUS. See, e.g., New York Ruling Letter (“NY”) N168337, dated, June 15, 2011, NY N180675, dated September 7, 2011, and NY N127620, dated October 27, 2010. Accordingly, pursuant to Note 1(e) to Chapter 70, the instant Glass Owl Hurricane is excluded from heading 7013 and is classified in heading 9405, HTSUS.
HOLDING:
In accordance with GRI 1, the instant “Glass Owl Hurricane Vase” is classified in heading 9405, HTSUS. It is specifically provided for in subheading 9405.40.80, HTSUS, as: "[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: Other electric lamps and lighting fittings: Other”. The general, column one rate of duty is 3.9 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch