Revocation of NY N036984, NY N110556, NY N094595, NY N266863, NY N260440, HQ 950426, and HQ 957982; tariff classification of glassware imported with lid; household decorative article.

HQ H285657 July 11, 2024 OT:RR:CTF:CPMMA H285657 CKG CATEGORY: Classification TARIFF NO.: 7010.90.50 Mr. William Baldwin Joel R. Junker & Associates 435 Martin St., Ste. 3060 Blaine, WA 98230 RE:   Revocation of NY N036984, NY N110556, NY N094595, NY N266863, NY N260440, HQ 950426, and HQ 957982; tariff classification of glassware imported with lid; household decorative article. Dear Mr. Baldwin: This ruling is in reference to New York Ruling Letter (NY) N036984, issued to Olympic Mountain and Marine Products on September 25, 2008, regarding the classification of an article identified as a “Dome-Top Candle Jar” under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N036984, U.S. Customs and Border Protection (CBP) classified the subject article as a candleholder under subheading 9405.50.40, HTSUS, which provides for, in pertinent part, other non-electric lamps and lighting fittings. Since the issuance of that ruling, we have reviewed the classification of substantially identical articles and have determined that NY N036984 is in error. In addition, CBP has also reviewed NY N110556, dated July 17, 2010, NY N094595, NY N266863, and NY N260440, which involved the classification of substantially identical glassware under subheading 9405.50.40, HTSUS, as well as Headquarter Ruling Letter (HQ) 950426 and HQ 957982, which involved the classification of glass containers as votive candle holders in heading 7013 (subheading 7013.99.50), HTSUS. As with NY N036984, we have determined that the tariff classification of the subject merchandise in these rulings is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NYN036984 and NY N110556 was published on July 11, 2018, in Volume 52, Number 28 of the Customs Bulletin. Two comments were received in response to this notice, and are addressed herein Since the publication of the notice of proposed revocation in 2018, CBP further determined that NY N094595, NY N266863, NY N260440, HQ 950426, and HQ 957982 are also incorrect and should be revoked. Notice proposing to revoke NY N036984, NY N094595, NY N266863, NY N260440, NY N110556, HQ 950426, and HQ 957982 was published on February 21, 2024, in Volume 58, Number 07 of the Customs Bulletin. No comments were received in response to this notice. FACTS: In HQ 957982, CBP classified two styles of cylindrical glass vessels in subheading 7013.99.35, HTSUS, as votive candle holders. The style at issue is approximately 8” tall and 2” in diameter, and made from low quality clear glass, and featuring a fired lip, mold seams and knurling on the bottom. The estimated cost is between 15 and 20 cents per container. It is imported into the United States empty and then filled with a wick and candle wax. In HQ 950426, CBP classified cylindrical glass containers in subheading 7013.99.35, HTSUS, as votive candle holders. The containers measure approximately 8 1/2 inches in height and 2 11/16 inches in diameter and are imported into the United States empty and then filled with candle wax. In some cases, the glass containers are silk screened before they are filled with candle wax. The protestant, “Candle Corporation of America”, states that the glass containers are designed and used exclusively as a candle container. In NY N110556, CBP classified “PDQ Mixed Tumblers” in heading 8405, HTSUS. The products are glass containers measuring approximately 3 inches high with an outside diameter of 2¾ inches, of transparent frosted glass, designed for the production of filled candles.” They are stated to be in compliance with ASTM F2179, a standard for glass containers that are produced for use as candle vessels. In NY N036984, CBP classified a “Dome-top Candle Jar” in heading 9405, HTSUS. The jar was described as a clear glass article with a floral frosted design, designed for a filled candle and measuring approximately 4 inches tall with an inside diameter of 3 inches. The jar is flared approximately ½ inch around the base. The candle jar is imported with a frosted glass lid, which is fitted with a plastic seal designed to contain the fragrance from a scented candle. Once imported, the candle jar and lid are transported directly to a packing plant where it is filled with candle wax and a wick, packaged and labeled for retail sale. The article is stated to be in compliance with ASTM F2179. In NY N266863, the items at issue are as follows: Item HG 1030, which is a 5 ounce glass vessel measuring approximately 2.375 inches tall with a diameter of 3.25 inches; and 3KG, which is a 1.25 ounce glass candle vessel. Upon importation into the United States, the candle holders are sent to the customer’s facility where they will be filled with wax and wick, fitted with a matching lid and packaged for retail sale. As imported, this candle holders are disposable vessels made of thin, clear glass and are stated to be in compliance with ASTM F2179. In NY N260440, CBP classified the following in heading 9405, HTSUS: Item number E3041, a 14.5 oz. glass candle holder. The article is a glass jar candle holder made of thin, clear glass, measuring approximately 3.5 inches high with an outside diameter of 4 inches. Upon importation into the United States, the candle holders are sent to the customer’s facility where they will be filled with wax and wick and fitted with a matching lid and packaged for retail sale. This item complies with ASTM F2179. The style at issue in NY N094595 is a cuplike container made of thin, clear glass and measuring approximately 2 ½ inches high with an outside diameter of 2 ¾ inches. The container is designed to be filled with candle wax. Upon importation into the United States by ARC International, the candle vessels are sent to the customer’s facility and filled with wax and a wick and packaged for retail sale. The item complies with ASTM F2179. ISSUE: Whether the subject articles are classifiable as other non-electrical lamps and lighting fittings of subheading 9405.50.40, HTSUS, other glass containers for the conveyance or packing of goods under subheading 7010.90.50, HTSUS, or as other glassware of a kind used for indoor decoration under subheading 7013.99.50, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 will then be applied in order. The 2024 tariff provisions under consideration in this ruling are set forth below: 7010 Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; 7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): 7013.37 Other drinking glasses, other than of glass-ceramics: 7013.41 Glassware of a kind used for table (other than drinking glasses) or kitchen purposes, other than of glass-ceramics: 7013.99 Other glassware: Other: 7013.99.35 Votive-candle holders 7013.99.50 Other: Other: Valued over $0.30 but not over $3 each * * * * 9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; * * * * Note 1(e) to Chapter 70, HTSUS, excludes “[L]amps 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 (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to 94.05 provides, in pertinent part: (I) LAMPS AND LIGHTING FITTINGS,NOT ELSEWHERE SPECIFIED OR INCLUDED Lamps and lighting fittings of this group can be constituted of any material (excluding those materials described in Note 1 to Chapter 71) and use any source of light (candles, oil, petrol, paraffin (or kerosene), gas, acetylene, electricity, etc.). Electrical lamps and lighting fittings of this heading may be equipped with lampholders, switches, flex and plugs, transformers, etc., or, as in the case of fluorescent strip fixtures, a starter or a ballast. This heading covers in particular:   (1)  Lamps and lighting fittings normally used for the illumination of rooms, e.g.: hanging lamps; bowl lamps; ceiling lamps; chandeliers; wall lamps; standard lamps; table lamps; bedside lamps; desk lamps; night lamps; watertight lamps. … (6)   Candelabra, candlesticks, candle brackets, e.g., for pianos. * * * * *      As Note 1(e) to Chapter 70, HTSUS, excludes articles of heading 9405, HTSUS, the initial issue is whether the subject articles are lamps or lighting fittings classifiable in heading 9405, HTSUS. In Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269, at 1281 (Ct. Int’l. Trade 2013) (“Pomeroy IV”), the Court of International Trade (CIT) held: As an eo nomine tariff provision, heading 9405 generally encompasses all forms of the article. See, e.g., Pomeroy II, 32 CIT at 549, 559 F. Supp. 2d at 1396 (concluding that heading 9405 “is clearly identifiable as an eo nomine provision,” not a principal use provision); Pl.’s Brief at 6, 15, 16 (stating that heading 9405 is eo nomine provision); Def.’s Reply Brief at 5 (same); Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (explaining that eo nomine provisions ordinarily cover all forms of named article). In Pomeroy IV, the CIT cited to various dictionary definitions to determine the scope of the legal text of heading 9405, HTSUS. Citing Merriam-Webster’s Collegiate Dictionary (10th edition, 1997), the court noted: [A] ‘lamp’ is defined as ‘any of various devices for producing light or sometimes heat’… ‘[L]ighting’ is synonymous with ‘illumination,’ and ‘fitting’ is defined as ‘a small often standardized part,’ e.g., an electrical fitting… Dictionary terms are similarly instructive in interpreting terms such as ‘candlestick’ and ‘candelabra.’ One dictionary defines ‘candlestick’ as ‘a holder with a socket for a candle’ and defines ‘candelabra’ as a ‘branched candlestick or lamp with several lamps’… [A]nother dictionary defines a ‘candlestick as ‘a holder with a cup or spike for a candle’ and ‘candelabrum’ as ‘a large decorative candlestick having several arms or branches. Id. at 1283. EN 94.05 lists candelabras, candlesticks, or candle brackets as exemplars of candle holders classified as light fixtures of heading 9405. As discussed by the CIT in Pomeroy, these exemplars possess physical features that would serve to hold a candle securely in place such as sockets, cups or spikes. With respect to NY N036984 and NY N110556, we conclude that the instant glass articles do not possess the features required for candle holders of heading 9405, HTSUS - that is, a cup, spike, socket or similar feature that would secure a candle in place. When filled with molten wax, the instant glasses would therefore hold the candle securely in place. However, without a feature specific to candle holders such as those discussed in Pomeroy, the instant merchandise is not eo nomine provided for in heading 9405, HTSUS. The instant glass containers possess no particular distinguishing feature that would establish their identity or use as candle holders as opposed to other ordinary glass containers used as conveyance articles or in the home for storage or as drinking glasses. Although the composition of the glasses is not specified in the rulings at issue, the ASTM standard F2179 cited in support of classification in heading 9405, HTSUS, covers annealed soda-lime-silicate glass containers. Annealed soda-lime glass construction is typical of ordinary houseware. See https://www.sciencedirect.com/topics/ chemistry/soda-lime-glass (last visited, April 6, 2023). ASTM F2179 describes a method of determining the stress tolerance of annealed glass. Most container glass--drinking glasses, vases, pitchers, etc. --is annealed (a process of slowly cooling hot glass after formation to relieve residual stress introduced during manufacturing), and most container glass is manufactured to the same standard as specified in ASTM F2179 - i.e., to a tempering number of 4 or below. The most relevant factors pertaining to thermal tolerance of glass are the composition, thickness and whether the glass is tempered. In particular, borosilicate glass (which contains boron trioxide) is known to have superior thermal shock resistance as compared to ordinary soda-lime glass. There is no indication that the instant glass containers are constructed of other than ordinary soda-lime glass or that they have been subjected to an additional tempering process. Therefore, we find that the instant products do not possess any characteristics unique to light fixtures of heading 9405, HTSUS. As the CIT concluded in Pomeroy, “At the time of importation, none of the articles here contained candles.  Therefore, at the time of importation, none of the articles were capable of providing illumination, as contemplated by heading 9405. Nor do any of the articles have physical features that are specifically designed to hold a candle in place – no “sockets,” “cups,” or “spikes,” or anything else remotely akin to the specific features of the items (candelabra, candlesticks, and candle brackets) listed in the Explanatory Notes to heading 9405…the term “candle holder” is synonymous with “candlestick” – an article that not only holds a candle, but holds it securely. If it were otherwise, any relatively flat, non-slippery object could at least theoretically be referred to as a “candle holder” for flat-bottomed candles, and thus would be prima facie classifiable under heading 9405 – a patently absurd result...” The court also noted that, as Pomeroy had admitted, all of the glass articles at issue therein “can readily be used to hold a wide range of items, including, for example, "colored glass, fruit, or perhaps a wine bottle.’” See Pomeroy III at 1282-1283. For these reasons, the conclusion of the CIT in Pomeroy applies also to the instant merchandise. Similarly, the glass articles the subject of NY N266863, NY N260440, NY N266863, HQ 950426, and HQ 957982 are not prima facie classifiable as a lamp or lighting fitting of heading 9405, HTSUS. As the subject articles are not classified in heading 9405, HTSUS, the next determination is whether they are described in Chapter 70. Heading 7013, HTSUS, provides for “[G]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).” As the heading text to 7013 specifically excludes glass articles classifiable in heading 7010, HTSUS, we must first consider whether the instant articles are “of heading 7010.” As heading 7010, HTSUS, provides for containers “of a kind used” for the conveyance or packing of goods, it is a “principal use” provision and a classification analysis utilizing Additional U.S. Rule of Interpretation (AUSRI) 1(a) is appropriate. AUSRI 1(a) provides for classification “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 specifies that “the controlling use is the principal use.” The CIT has provided indicative factors to apply when determining whether particular merchandise falls within a class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See Kraft, Inc, v. United States, USITR, 16 CIT 483 (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979. Additionally, in Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (Fed. Cir. 1999), the CIT, in discussing principal use, held that “it is the use of the class or kind of goods being imported that is controlling, rather than the specific use to which the importation itself is put,” i.e., goods need not be actually used in the same manner as the entire class or kind in order to recognized as part of that class or kind. CBP has repeatedly upheld this analysis by defining principal use as the use of the class or kind of the merchandise at issue that exceeds any other use. The EN to 70.10 provides that the heading “covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). The 2017 online Oxford Dictionary defines the term “conveyance” to mean, in pertinent part, “the action or process of transporting or carrying someone or something from one place to another.” See https://en.oxforddictionaries.com/definition/conveyance (site last visited December 1, 2017). The same lexicographic source defines, in pertinent part, the term “packing” as “material used to protect fragile goods in transit” and the term “commercial” as “concerned with or engaged in commerce,” which is the exchange or buying and selling of commodities. The CIT has provided more specific guidance with regard to heading 7010, HTSUS. In Latitudes Int’l Fragrance, Inc. v. United States, 931 F. Supp. 2d 1247 (Ct. Int’l Trade 2013), in which the CIT reviewed CBP’s classification of empty glass “diffuser bottles” that, once imported, were filled with fragranced oil, fitted with stoppers and diffuser reeds, and packaged for sale as “diffuser kits” used for the dispersion of fragrances in enclosed spaces. Id. at 1250. The court determined that the principal use of the diffuser bottles was as vessels for the conveyance of fragranced oils of heading 7010, HTSUS, rather than as glassware for indoor decoration of subheading 7013.99.50, HTUS. The court noted in particular that the diffuser bottles were specially designed to contain the fragranced oil, were sent to market only when filled with the oil, that the price of the bottles with their contents at retail was much higher than the cost of the bottles alone, and that while refill kits for the fragranced oil were available from third party vendors, the plaintiff did not sell any refills itself, and there was no evidence that diffuser bottles were sold empty at retail. Based on this determination, the court concluded that the bottles were properly classified in heading 7010, HTSUS. Id. at 1257. Similarly, in Dependable Packaging Sols., Inc. v. United States, No. 10-00330, 2013 Ct. Int’l. Trade LEXIS 28 (Ct. Int’l Trade Feb. 20, 2013), the Court found the fact that the glass vases at issue were designed with a closure was “probative as to . . . [the article's] principal use as a container for the conveyance or packing of goods.” Dependable Packaging, 2013 Ct. Int’l. Trade LEXIS 28, Slip Op. 13-23 at 9  [**15] (citing Accurate Plastic Moulding, Inc. v. United States, 26 CIT 1201, 1204 n.3). The distinction between products principally used for packaging