CLA-2 RR:CR:GC 960503 PH
Port Director
U.S. Customs Service
Post Office Box 3130
Laredo, Texas 78044
RE: Protest 2304-96-100078; caged glass; glassware with glass
blown into metal framework; cone-shaped glassware with metal
stand; candle holder; glassware for table, kitchen, toilet,
office, indoor decoration; principal use; basket provision;
essential character; composite good; GRI 3(b); U.S.
Additional Note 1(a); ENs 70.13; 70.06; 70.09; HQ 956810;
957794; 960475; 960499
Dear Port Director:
This is our decision on protest 2304-96-100078, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain glassware blown into metal frames and a
glass "CONE" with metal base. In preparing this decision,
consideration was also given to supplemental submissions dated
April 9 and June 5, 1997, from counsel for the protestant.
FACTS:
The merchandise under consideration is invoiced as "STAR
PEDESTAL VASE ANTIQUE", "BOLO PEDESTAL VASE ANTIQUE", "OLAS
PEDESTAL VASE ANTIQUE", "SCROLL PEDESTAL VASE ANTIQUE", and "CONE
W/IRON BASE". Literature was provided describing the first four
items as "glass blown into iron" 12" high and 8" square.
According to the illustrations of the items in this literature,
each item consists of a glass article in an iron frame, with
either a square or cylinder-shaped body, flat base, and circular
opening somewhat smaller than the diameter of the body of the
article. The iron framework differs for each kind of "pedestal
vase."
A sample of the "BOLO" pedestal vase was provided. The
overall height (including glass and iron) is 12" and the base of
the article is approximately 6" square. The glass component of
the article is approximately 9 1/2" in height, with a base
approximately 6" square, four sides approximately 6" high, and a
neck which diminishes in diameter from the body of the article to
an opening of approximately 4 1/2" in diameter.
No sample or description of the "CONE" item is provided. In
the absence of any information or evidence to the contrary, we
assume that this article is in the shape of a cone and is unable
to stand on its own without the metal pedestal or stand (see,
e.g., Headquarters ruling (HQ) 956810 dated November 28, 1994).
The merchandise was entered on October 21, 1995. The entry
was liquidated on February 9, 1996, with classification of the
merchandise under consideration in subheading MX7013.99.90, HTSUS
(qualification of the goods as goods of Mexico subject to North
American Free Trade Agreement (NAFTA) treatment is not at issue
and is not considered in this ruling).
The importer's counsel filed this protest with Customs on
April 12, 1996, against the classification of the merchandise.
In regard to the "STAR", "BOLO", "OLAS", and "SCROLL" articles,
the protestant states that they consist of "wrought iron forms
into which glass has been blown, with the glass extending through
the openings in the iron frames." The protestant states that
although the articles are described on the invoice and sold by
the importer as vases, another importer sells them as lanterns
and they are in the traditional shape of lanterns used in the
Southwestern United States.
Citing General Rule of Interpretation (GRI) 3(b), the
protestant contends that because the iron frames dictate the
shape of the articles and provide support for the glass, the
glass "clearly plays a lesser role in the appearance of the
overall article." The protestant states that the iron also
provides "the rustic nature of the article, which is its major
selling point." Therefore, the protestant contends that the
articles should be classified as if they consisted of wrought
iron, under subheading 7323.99.90, HTSUS, or, alternatively,
7326.90.85, HTSUS.
If the essential character of the caged articles is
determined to be derived from the glass component, the protestant
contends that, on the basis that Harmonized Commodity Description
and Coding System Explanatory Note (EN) 70.13 provides that
articles of glass combined with other materials are classified in
heading 7013 only if the glass gives the whole the character of
glass articles, classification in heading 7013 is precluded and
should be under heading 7020.
As a third alternative, the protestant contends that no
principal use of the articles has been established and, in the
absence of a principal use, GRI 3(c), providing for
classification under the heading which occurs last in numerical
order among those which equally merit consideration, requires
classification under heading 9405.
In regard to the "CONE" article, the protestant contends
that this article "is a lighting article [and] is properly
classifiable under subheading MX9405.50.40, [HTSUS]."
The subheadings under consideration are as follows:
7013.99.90 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: ... Other:
... Other: ... Valued over $3 each: ... Other: ...
Valued over $5 each.
The 1995 general column one rate of duty for goods classifiable
under this provision is 7.2% ad valorem; that for goods of Mexico
qualifying for NAFTA treatment is 6.2% ad valorem.
7020.00.00 Other articles of glass.
The 1995 general column one rate of duty for goods classifiable
under this provision is 6.3% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
7323.99.90 Table, kitchen or other household articles and
parts thereof, of iron or steel; ...: Other: ...
Other: ... Not coated or plated with precious
metal: ... Other.
The 1995 general column one rate of duty for goods classifiable
under this provision is 3.4% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
7326.90.85 Other articles of iron or steel: ... Other: ...
Other: ... Other.
The 1995 general column one rate of duty for goods classifiable
under this provision is 5.1% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
9405.50.40 Lamps and lighting fittings including searchlights
and spotlights and parts thereof, not elsewhere specified or included ...: ...
Non-electrical lamps and lighting fittings: ...
Other: ... Other.
The 1995 general column one rate of duty for goods classifiable
under this provision is 7.3% ad valorem; goods of Mexico
qualifying for NAFTA treatment are duty-free.
ISSUE:
Whether the glassware is classifiable as other glassware of
a kind used for indoor decoration or similar purposes in
subheading 7013.99.90, HTSUS, other articles of glass in
subheading 7020.00.00, HTSUS, other table, kitchen or other
household articles of iron or steel in subheading 7323.99.90,
HTSUS, other articles of iron or steel in subheading 7326.90.85,
HTSUS, or other non-electrical lamps and lighting fittings in
subheading 9405.50.40, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. Pursuant to
GRI 3(b), when goods are prima facie classifiable under two or
more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods put
up in sets for retail sale, which cannot be classified by
reference to 3(a) [by reference to the heading which
provides the most specific description], shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
Under GRI 3(c), when goods cannot be classified by reference to
GRI 3(a) or (b), they shall be classified under the heading which
occurs last in numerical order among those which equally merit
consideration.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
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. Customs believes
the ENs should always be consulted. See T.D. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
The "STAR", "BOLO", "OLAS", and "SCROLL" articles,
consisting of wrought iron forms into which glass has been blown,
with the glass extending through the openings in the iron frames,
are composite goods (see EN Rule 3(b)(IX), "... composite goods
made up of different components shall be taken to mean not only
those in which the components are attached to each other to form
a practically inseparable whole ..."). We have ruled glassware
similar to the "CONE" article to be composite goods (see, e.g.,
HQs 956810 (referred to above) and 957794 dated October 2, 1995).
Thus, under GRI 3(b), classification of the articles is
determined on the basis of the component which imparts the
essential character.
In Headquarters ruling (HQ) 960499 dated July 8, 1998,
issued to you in regard to a protest by the same protestant, we
considered the issue of essential character of articles similar
to those under consideration, certain "caged glass" articles in
which glass is blown into an iron framework. We concluded, on
the basis of cited Court decisions, that the "indispensable
function" of the articles was holding or containing whatever was
put in them, whether candles, flowers, or anything else, and that
the component which performed that function was the clearly the
glass component. The same is true of the "STAR", "BOLO", "OLAS",
and "SCROLL" articles, as well as the "CONE" article (assuming it
to be cone-shaped glassware unable to stand on its own without
the pedestal or stand (see also HQ 956810 (referred to above))).
For the same reasons as in HQ 960499, the LAW AND ANALYSIS
portion of which is incorporated by reference into this ruling,
we conclude that the essential character of the articles is given
by the glass component.
Accordingly, the articles must be classified as if they
consisted of glass, and classification in subheading 7323.99.90
or 7326.90.85, HTSUS, is precluded. Because subheading
7020.00.00, HTSUS, is a so-called "basket" provision, we are
first addressing the other competing provisions. Only if
classification in one of these provisions is precluded will we
address classification in subheading 7020.00.00, HTSUS. (See HQ
960499, referred to above, in this regard.)
Subheadings 7013.99.90 and 9405.50.40, HTSUS, as applicable
to the merchandise under consideration, are controlled by use
(other than actual use). In such provisions, articles are
classifiable according to the use of the class or kind of goods
to which the articles belong and the controlling use is the
principal use at the time of importation (Additional U.S. Rule of
Interpretation 1(a), HTSUS).
In HQ 960499 (referred to above), we addressed the principal
use issue in regard to articles similar to those under
consideration. We noted Court decisions providing factors to
apply when determining whether merchandise falls within a
particular class or kind and we referred to the notice published
in the March 25, 1998, edition of the CUSTOMS BULLETIN (Volume
32, Number 12, page 32), regarding the classification of similar
articles. We stated that Customs has concluded that the class or
kind for goods similar to those under consideration is defined by
the form or shape of the article (e.g., bell-shape, similar to
bell-shape, flower pot shape, tulip or flower petal shape, cube
or rectangle shape, disk shape, bowl shape, and other shapes) and
its size. According to the information obtained, glassware in
one of these forms or shapes with an opening of 4 inches or less
in diameter and a height or depth of 5 inches or less is used
substantially more frequently as a candle holder than for any
other purpose and larger glassware is used substantially more
frequently for general indoor decoration.
In HQ 960499 (see also HQ 960475 dated June 30, 1998, issued
to you in regard to a protest by the same protestant), we applied
the above criteria in determining the principal use of articles
similar to the "STAR", "BOLO", "OLAS", and "SCROLL" "pedestal
vase[s]". We concluded that the class or kind for such articles
is defined by the form or shape of the article (i.e., glass blown
into a metal bottle-like frame, sometimes called "caged glass")
and its size. We found there to be a distinction based on size
between such articles used as candle holders and those used for
general indoor decoration. The parameters of size are similar to
those described above, although for these articles, glassware
with an opening of 4 inches or less in diameter and a height or
depth of 6 (instead of 5) inches or less appears to be
principally used as a candle holder, and larger glassware appears
to be principally used for general indoor decoration.
The "STAR", "BOLO", "OLAS", and "SCROLL" "pedestal vase"
articles are made of relatively thick glass blown into an iron
frame with dimensions well in excess of those of the class or
kind of articles we found to be principally used as candle
holders in our analysis of the information received in response
to the March 25, 1998, Customs Bulletin notice. This also is
consistent with the pertinent factors listed by the Courts for
determining principal use (see above). That is, in regard to
physical characteristics, the size of the opening permits easy
access; as for the appearance of the combination of iron
framework and glass formed around that framework, advertising
literature for similar larger items describes this appearance as
providing "a fresh statement for bigger, bolder, longer stemmed
blossoms" or "[a] dramatic flower presentation"; further we note
that the articles are invoiced as "vase[s]". In regard to the
other pertinent factors (expectation of ultimate purchasers;
channels of trade; environment of sale; and usage, economic
practicality of such usage, and recognition of the trade of the
such usage), the evidence obtained from the public in response to
the March 25, 1998, Customs Bulletin notice supports principal
use of the articles for indoor decoration and not as candle
holders.
In regard to the "CONE" article, based on the invoice value
of the article we believe the opening of the glass portion of the
article to be larger than 4 inches in diameter and its height or
depth to be greater than 5 inches. Assuming this article to be
cone-shaped glassware unable to stand on its own without the
pedestal or stand and in the absence of information to the
contrary, the evidence obtained from the public in response to
the March 25, 1998, Customs Bulletin notice supports principal
use of the article for indoor decoration and not as a candle
holder. However, in regard to this item only, because we are not
certain as to the physical details of the article the protestant
is being given 30 days to provide evidence on the physical
details of this article if it chooses to do so, subject to the
conditions set forth in the HOLDING portion of this ruling.
The protestant contends that classification of the articles
in heading 7013 is precluded by EN 70.13. This contention was
addressed at considerable length in HQ 960499 (referred to above
and incorporated by reference into this ruling). In HQ 960499,
we rejected this contention because adoption of protestant's
argument would require us to ignore the plain language of GRI
3(b) for heading 7013, on the basis of non-controlling
legislative history, contrary to cited authorities. We noted the
rule of statutory construction calling for the harmonization of
different parts of a tariff act which appear to be inconflict, as
well as statements in ENs 70.06 and 70.09 inconsistent with the
protestant's argument. We concluded, in regard to this
contention, that the glass in composite goods such as those under
consideration "gives the whole the character of glass", as stated
in EN 70.13, by virtue of application of GRI 3(b), so that
classification in heading 7013 is not precluded by EN 70.13. We
reach the same conclusion in this case.
Accordingly, the merchandise under consideration is
classified as other glassware of a kind used for indoor
decoration or similar purposes in subheading 7013.99.90, HTSUS.
HOLDINGS:
(1) The "STAR", "BOLO", "OLAS", and "SCROLL" articles are
classified as other glassware of a kind used for indoor
decoration or similar purposes in subheading 7013.99.90, HTSUS.
(2) The "CONE" article is classified as other glassware of a
kind used for indoor decoration or similar purposes in subheading
7013.99.90, HTSUS; except that, if within 30 days of the date of
the written notification to the protestant described below, the
protestant provides satisfactory evidence to establish that the
"CONE" article is within the class or kind of goods principally
used as candle holders, in accordance with the criteria provided
in HQ 960499 (referred to above), the "CONE" article is
classified as an other non-electrical lamp and lighting fitting
in subheading 9405.50.40, HTSUS. Upon receipt of this ruling,
please provide the protestant notification in writing that the
protest will be denied as to the "CONE" article unless
satisfactory evidence as to the article's form and size
(including the diameter of the opening and the height or depth of
the glassware) is provided to your office within 30 days of the
date of such notification.
The protest is DENIED (except if the protestant timely
provides satisfactory evidence to establish that the "CONE" item
is within the class or kind of goods principally used as candle
holders, the protest is GRANTED in part (as to the "CONE"
article) and DENIED in part (as to the "STAR", "BOLO", "OLAS",
and "SCROLL" articles)). In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, by your office to the protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of
the decision the Office of Regulations and Rulings will take
steps to make the decision available to Customs personnel via the
Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division