CLA-2 OT:RR:CTF:CPM H258963 APP
Ms. Jennie Crossley
Executive Vice President
Allstar Marketing Group LLC
4 Skyline Dr.
Hawthorne, NY 10532
RE: Revocation of NY N020311; Tariff classification of an Aqua Globe watering system
(glass plant watering bulb) from China
Dear Ms. Crossley:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N020311, dated December 13, 2007, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of an Aqua Globe watering system, which is a glass bulb used to water houseplants. In NY N020311, CBP classified an Aqua Globe in subheading 7020.00.60, HTSUS, which provides for “Other articles of glass: Other” and in subheading 9817.00.50, HTSUS, which provides for “Machinery, equipment and implements to be used for agricultural or horticultural purposes.” We have determined that NY N020311 is in error both with respect to the primary and secondary classifications. Therefore, for the reasons set forth below we hereby revoke NY N020311.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. 1625 (c)(l)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 51, No. 23, on June 7, 2017, proposing to revoke NY N020311 and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
NY N020311 describes the subject merchandise as follows:
The merchandise at issue is referred to as an Aqua Globe. The item is a hand blown glass bulb at the end of a glass tube that comes in a variety of colors. The entire piece measures approximately 14 inches in length and the bulb measures approximately 3 ½ inches in diameter. According to the information you submitted and your website, the user fills the bulb of the Aqua Globe with water and inserts the open tube end in the soil of a houseplant. The balance of air and water pressure in the soil as it dries allows water to enter the soil from the Aqua Globe as needed in order to keep the soil moist.
ISSUE:
Whether the glass plant watering bulb is classifiable under heading 7013, HTSUS, as glassware of a kind used for indoor decoration or similar purposes or under heading 7020, HTSUS, as other articles of glass.
Whether a secondary classification under subheading 9817.00.50, HTSUS as equipment or implements to be used for agricultural or horticultural purposes is appropriate.
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.
GRI 6 states, in pertinent part that:
[T]he 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. For the purpose of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The 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):
Other glassware:
7013.99 Other:
7020.00 Other articles of glass:
9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes.
Additional U.S. Rule of Interpretation (“AUSRI”) 1(a) 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.
U.S. Note 2 to Subchapter XVII, HTSUS of Chapter 98, HTSUS, states that:
The provisions of heading 9817.00.50 and 9817.00.60 do not apply to: …
(f) articles provided for in section XIII (except heading 6808 and subheadings 6809.11, 7018.10, 7018.90, 7019.40, 7019.51, 7019.52 and 7019.59);
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 70.13 states, in relevant part that:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds: . . .
(4) Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views.
The relevant ENs for heading 70.20, provide, in pertinent part:
This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature.
These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles.
As an initial matter, we note that U.S. Note 2 to Subchapter XVII, HTSUS of Chapter 98, HTSUS, excludes articles of Section XIII, HTSUS, which includes both heading 7013 and 7020, HTSUS, from duty-free treatment provided for in subheading 9817.00.50, HTSUS. Hence, regardless of which primary classification we find appropriate, the glass bulb is not eligible for duty-free treatment under Chapter 98, HTSUS, and NY N020311 must be revoked.
There is no question that the glass plant watering bulb is classifiable in Chapter 70, HTSUS, which provides for articles of glass. The headings under consideration are headings 7013 and 7020, HTSUS. Heading 7020, HTSUS is a residual or “basket” provision encompassing all “other articles of glass,” which is appropriate only when an item is not properly classifiable under another heading that covers the merchandise more specifically. See Pomeroy Collection, Inc. v. United States, 26 CIT 624, 631, 246 F. Supp. 2d 1286, 1293 (2002); Apex Universal, Inc. v. United States, 22 CIT 465, 1998 Ct. Intl. Trade LEXIS 64, at *16-*17 (1998). Therefore, we will first address heading 7013, HTSUS. Only if classification in heading 7013, HTSUS is precluded will we address classification in heading 7020, HTSUS.
Heading 7013, HTSUS, in relevant part, includes “glassware of a kind used for . . . indoor decoration or similar purposes.” Heading 7013, HTSUS is a "principal use" provision and is governed by AUSRI 1(a), HTSUS. Thus, 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. In determining whether the principal use of a product is for indoor decoration or similar purposes, and thereby classified in heading 7013, HTSUS, CBP considers a variety of factors, including: (1) general physical characteristics of the merchandise; (2) expectation of the ultimate purchaser; (3) channels, class or kind of trade in which the merchandise moves; (4) environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed);
(5) usage, if any, in the same manner as merchandise which defines the class; and
(6) economic practicality of so using the import and recognition in the trade of this use. See United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976), cert. denied, 429 U.S. 979 (1976). Not all of these factors will necessarily be relevant in every situation.
The glass plant watering bulb at issue is intended to be decorative given its shape and appearance. The Aqua Globe is made of hand blown glass and comes in a variety of colors. It is marketed and sold as hand blown glass design that adds beauty to indoor and outdoor potted plants in addition to watering plants up to two weeks. The ultimate purchaser expects the glass bulb to automatically water a houseplant for up to two weeks and to look beautiful. Purchasers commented at www.amazon.com that the Aqua Globe is “pretty,” is “perfect when not at home for an extended period of time,” and “work[s] amazing and look[s] gorgeous.”
The function of the Aqua Globe is similar to that of decorative glass vases or pitchers. EN 70.13(4) includes vases among its exemplars for “Glassware for indoor decoration and other glassware.” Decorative glass vases and pitchers have been classified in heading 7013, HTSUS. See Headquarters Ruling Letter (“HQ”) H207515, dated October 2, 2014 (orange-tinted glass vase classified in heading 7013, HTSUS); NY E87764, dated October 15, 1999 (ribbon glass vase classified in heading 7013, HTSUS); NY E84232, dated August 11, 1999 (glass pitcher with green swirl design classified in heading 7013, HTSUS). Just like decorative glass vases and pitchers that hold or pour water to keep cut or potted plants alive, the Aqua Globe is a decorative hand blown glass bulb at the end of a glass tube that holds water and releases slowly the amount of water that the potted plant needs for up to two weeks. Thus, the Aqua Globe is classifiable under heading 7013, HTSUS, and not in the catch-all provision under heading 7020, HTSUS, based on its general physical characteristics, expectation of the ultimate purchaser, environment of the sale, and usage.
Lastly, as noted above, the Aqua Globe is provided for under heading 7013, HTSUS, and is therefore excluded from subheading 9817.00.50, HTSUS pursuant to
U.S. Note 2 to Subchapter XVII of Chapter 98, HTSUS. Accordingly, the Aqua Globe is classifiable in heading 7013, HTSUS, with no secondary classification.
HOLDING:
By application of GRIs 1 and 6, and AUSRI 1(a), the Aqua Globe is provided for in heading 7013, HTSUS, specifically in subheading 7013.99, HTSUS, which 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): Other glassware: Other.” Pursuant to U.S. Note 2 to Subchapter XVII of Chapter 98, HTSUS, the Aqua Globe is excluded from subheading 9817.00.50, HTSUS.
Due to our current lack of information about the value of the Aqua Globe, we are unable to provide a rate of duty for the Aqua Globe at this time. Should you require a determination as to the classification of the Aqua Globe at the 8-digit level, please submit a request for a binding ruling, along with any information required for this determination, to CBP’s National Commodities Specialist Division (“NCSD”). Requests for a binding ruling may be made electronically via CBP’s website, https://apps.cbp.gov/erulings/index.asp, or by writing to NCSD at the following address:
Director, National Commodity Specialist Division
Regulations and Rulings
Office of Trade
U.S. Customs and Border Protection
201 Varick Street, Suite 501
New York, New York 10014
Attn.: Binding Ruling Request
EFFECT ON OTHER RULINGS:
NY N020311, dated December 13, 2007, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division