CLA-2 OT:RR:CTF:TCM H207515 HvB
Port Director, Service Port-Los Angeles/Long Beach
U.S. Customs and Border Protection
Protest and Control
301 E. Ocean Blvd
Long Beach, CA 90802
Attn: TaTanisha Lankford, Import Specialist
Re: Application for Further Review of Protest No. 2704-11-102636; orange-tinted glass vase
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-11-102636, timely filed on November 9, 2011, filed on behalf of Teleflora, LLC (“Teleflora” or “Protestant”). The AFR concerns the classification of an orange-tinted glass vase under the Harmonized Tariff Schedule of the United States (HTSUS).
On September 4, 2014, members of my staff met with counsel via teleconference. This decision takes into account arguments made during that meeting and presented by counsel in a supplemental submission dated September 5, 2014.
FACTS:
The subject merchandise consists of an orange-tinted glass vase, Item 11H200. The item is sold on Teleflora’s and its affiliate florist websites as a vase for flowers under the description “Teleflora’s Glass-O-Lantern Bouquet.” When the consumer purchases the item, the customer typically receives the subject merchandise filled with a floral arrangement and water. Also included with the bouquet are stick-on decals that portray the face of a jack-o-lantern.
The Protestant states that the jack-o-lantern stickers are not attached to the subject merchandise at importation and that, outside the Halloween season, Teleflora imports the glass article without the stickers. A sample of the subject merchandise was received and examined by this office. The sample consists of an orange-tinted globe-shaped glass vase which is approximately 5 inches in height, 6 inches at its widest point and a depth of approximately 5 inches. The top of the vase has a 3 inch diameter circular opening. The bottom of the vase is convex and is approximately 3 inches in diameter and ¾ inch in height. The peel-off sticker on the bottom of the vase contains: a “Teleflora ® Gift” mark, a Country of Origin marking, and a statement that the item is not dishwasher safe.
The port’s submission includes print-outs which depict how the subject merchandise was marketed and sold online as a vase for floral arrangements, at time of entry. Teleflora’s website also currently sells a substantially similar item under Item Number T12H140, in a manner consistent with the port’s submission. Following is a picture of the vase currently sold on Teleflora’s website:
The subject merchandise was entered on August 4, 2011, under subheading 7013.99.35, HTSUS, which provides for: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: Other glassware: Other: Votive-candleholders.” Based upon a review of the product description, CBP rate advanced and liquidated the merchandise on September 1, 2011, in subheading 7013.99.50, HTSUS: “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: Other glassware: Other: Other.” Protestant timely filed this Protest and AFR on November 9, 2011, claiming that the subject merchandise is properly classified under subheading 9405.50.40, HTSUS, which provides for “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included…: Non-electrical lamps and lighting fittings: Other: Other”. In the alternative, Teleflora submits that merchandise is classifiable, as entered, in the “votive-candleholders” provision in subheading 7013.99.35, HTSUS.
ISSUE:
Whether an orange tinted glass vase is classified as a lamp of heading 9405, HTSUS, or as glassware of heading 7013, HTSUS, and whether it is a votive holder or other glassware within the heading.
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 2011 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:
…
7013.99.35 Votive-candle holders
…
Other:
7013.99.50 Valued over $.30 but not over $3 each
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:
…
9405.50 Non-electrical lamps and lighting fittings:
Other:
9405.50.40 Other
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).
The relevant ENs for heading 70.13, provide in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
This heading convers the following types of articles, most of which are obtained by pressing or blowing in molds:
…
(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.
…
* * * * *
Note 1(e) to Chapter 70, HTSUS, excludes from classification under chapter 70 “lamps or lighting fittings”. The provision for lamps and lighting fittings, heading 9405, HTSUS, includes the language “not elsewhere specified or included.” Accordingly, a determination must first be made as to whether the Glass-O-Lantern is classifiable in heading 9405, HTSUS as a “lamp”. Beginning in 2002, the Court of International Trade addressed this issue in deciding the classification of decorative glass articles, candle lamps, and candle holders in a series of cases. See, e.g., Pomeroy Collection, Inc. v. United States, 246 F. Supp. 2d 1286 (Ct. Int’l Trade 2002) (“Pomeroy I”), Pomeroy Collection, Inc. v. United States, 32 C.I.T. 526, 559 F. Supp. 2d 1374 (Ct. Int’l Trade 2008) (“Pomeroy II”). In the most recent decision, the court defined the provision “lamp and lighting fittings” to include any items that use any source of light, including candles.” Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269 (Ct. Int’l Trade 2013) (Pomeroy IV) at 1281. Under these lines of cases, if the subject 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. Pomeroy II, supra, at 1385.
Furthermore, we note that in Pomeroy IV, the court examined various dictionary definitions of “candleholder” and provided the following useful analysis:
These definitions, with their references to a ‘socket’ and a ‘cup or spike’, indicate that a basic function of a candle holder is to hold a candle securely. As the Government puts it, it is the presence of a securely held candle that permits [an] article to satisfy the plain language purpose of articles under Heading 9405: to provide illumination.’ [Internal citations omitted].
The instant merchandise does not provide any source of light as it consists of a glass vase that it is not fit to securely hold a candle. The design and the dimensions of the vase do not allow for the safe burning of a candle. With a globe-shape that is 6 inches at widest in the middle and a base that is convex and 3 inches in diameter, the vase is neither sized to fit a votive candle, nor is it fitted to hold a votive (or any kind of) candle securely. However, members of my staff were unable to light a votive candle in the vase, as the mouth of the vase is too narrow to allow for such, even if the base of the vase was capable of securing a candle. Hence, even if its large size were that of a candle holder, its other physical attributes make it unsuitable for such use. In addition, it is neither imported, sold, nor marketed for use with a candle. Compare HQ H238493, dated April 2, 2014 (in which we classified a glass vase, containing a LED candle and marketed as a lantern in heading 9405, HTSUS). Furthermore, as observed by the court in Pomeroy IV: “[i]t is axiomatic that they must be classified in their condition as imported. At the time of importation, none of the articles were capable of providing illumination, as contemplated by heading 9405.” Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269, 1282 (Ct. Int’l Trade 2013), citing to BASF Corp. v. United States, 497 F.3d 1309, 1314 (Fed. Cir. 2007).
Moreover, the instant article does not resemble the articles we classified in New York Ruling Letter (NY) N114097, dated August 2, 2010, to which Protestant cites, as the glass bowl shaped article had a flat surface and met ASTM standards for candle accessories. Similarly, the subject merchandise are dissimilar from a “tapered square glass container” that was 2 inches by 2 inches by 2 inches and from “a tapered round glass cylindrical item measuring 3½ inches tall with a depth of approximately 3¼ inches”, which were classified as candle lamps in subheading 9405.50.40, HTSUS in NY N162742, dated May 16, 2011, to which Protestant cites. Therefore, we find that the subject Glass-O-Lantern is not classifiable in heading 9405, HTSUS.
Household glass articles, such as vases and votive candles, are classified in heading 7013, HTSUS. EN 70.13(5) includes “vases” among its exemplars for “Glassware for indoor decoration.” See also Dependable Packaging Solutions, Inc. v. United States, Ct. Int’l Trade Slip Op. 2013-23, (Feb 12, 2013) aff’d (Fed. Cir. 2014). The instant vase meets the common and commercial meaning of the “vase.” It is an open round glass vessel that is used for holding flowers and ornamentation.
Within heading 7013, vases are classified in subheading 7013.99.50, as other glassware other than votive-candle holders. Claiming that the merchandise is a votive candle-holder, Protestant suggests that the items are classifiable in subheading 7013.99.3500, HTSUS. Protestant cites to HQ H017657, dated December 12, 2007 and HQ 960022, dated May 1, 1998. In response, we note the instant glass item does not resemble the items classified in those rulings in two important ways. First, the instant vase is shaped in the form of a bowl/globe and thus is not cylindrical. In HQ H017657, we classified a cylindrical frosted glass tumbler as a votive holder. The instant glass bowl does not resemble the glass tumbler which we classified in that ruling, especially given the fact that the bottom of the instant vessel cannot safely and securely hold a candle. Secondly, in HQ 960022, we noted that upon importation, the glass candleholders were filled with wick and candle wax and then affixed with symbols affiliated with Judaism, such as the Star of David, and had Hebrew language. The glass article is not used as such after importation. Moreover, the design of the subject glass vase is well suited to arranging and displaying flowers: the diameter of the mouth is narrower than the interior diameter and the convex bottom together accommodate the display and arrangement of flowers.
Moreover, as noted above, Protestant has not provided any evidence that the item is marketed, sold, or used as a candleholder, i.e., its convex bottom does not allow for the proper fitting of a candle and its narrow opening and depth does not allow for the lighting of a candle. Moreover, it does not resemble the tumblers or tall “drinking glasses” that we have classified as votive candle-holders. See HQ 954372, dated September 22, 1994: “Additionally, we have held that votive candle holders are generally of two types, large glasses or "sanctuary lamps" which contain candles that burn for about a week and small glasses which hold candles that burn for a few hours.” See also HQ 950426, dated June 29, 1992. In contrast, in HQ 957952, dated August 3, 1995, we classified a cylindrical glass vessel that was described as a “sanctuary lamp” as a votive, observing that after importation, it was labeled with religious symbols and it was filled with candle wax and a wick. Thus, the instant vessel is not a sanctuary lamp or a votive candleholder.
HOLDING:
In accordance with GRI 1, the instant “Glass-o-Lantern” is classified in heading 7013, HTSUS. It is specifically provided for in subheading 7013.99.50, HTSUS, as: Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: Other glassware: Other: Other.” The 2011 general, column one rate of duty is 30 percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial & Trade Faciltation Division