CLA-2 CO:R:C:M 955857 KCC
District Director
U.S. Customs Service
9400 Viscount
Suite 104
El Paso, Texas 79925
RE: Protest 2402-93-100180; potpourri vase; glass vase and
potpourri; 3307.90.00; timely protest; 19 U.S.C. 1514(c)(2);
19 CFR 174.12(e); 90 days; GRI 3(b); composite good;
essential character; EN Rule 3(b); NY 852439; HRLs 952008,
087878, 088290, 951999; 951021; 951991; independent survey;
GRI 3(c); 7010.90.50; EN 70.10; commonly used commercial for
the conveyance or packing of goods
Dear District Director:
This pertains to Protest 2402-93-100180, concerning the
tariff classification of potpourri vases under the Harmonized
Tariff Schedule of the United States (HTSUS). Information
presented at a meeting on June 1, 1994, and in an additional
submission dated July 29, 1994, was considered in rendering this
decision. Samples were submitted for our examination.
FACTS:
The articles under consideration are glass vases of
different sizes which are filled with potpourri (a mixture of
dried flower petals with spices). The opening of the glass vase
is covered with lace and is secured by a decorative ribbon and
artificial flower glued into place. The protestant contends that
the lid is not removable and that the glass vase is of "B" grade
with no commercial value. As evidence of the low quality glass
used for the glass vase, the protestant submits a laboratory
analysis and the following weight and cost breakdowns for three
different sized vases/jars:
COST
PP-40 PUF-50 PP-70
Potpourri $0.280 $0.275 $0.700
Vase 0.080 0.080 0.150
Lace 0.030 0.030 0.040
Ribbon/Flower 0.030 0.030 0.040
Gift box 0.110 0.110 0.160
Labor 0.180 0.180 0.950
Master 0.020 0.020 0.030
Freight 0.020 0.025 0.030
TOTAL $0.750 $0.750 $1.50
WEIGHT
PP-40 PUF-50 PP-70
Potpourri 1.33 oz. 1.30 oz. 3.25 oz.
Vase 3.43 2.40 4.22
Lace 0.01 0.01 0.01
Ribbon/Flower 0.02 0.02 0.02
Gift box 0.39 0.51 0.62
Master 0.91 1.25 1.69
Additionally, an independent survey was submitted which the
protestant contends demonstrates that the consumer purchases the
potpourri vases for the pleasant fragrance and color of the
potpourri and not for any decorative value of the glass.
Upon importation, the entries of the potpourri vases were
liquidated on August 27, September 3, October 1 and 22, 1993,
under subheading 7013.99.50, HTSUS, as other glassware of a kind
used for table, kitchen, toilet, office, indoor decoration or
similar purposes, valued over $0.30 but not over $3 each. In a
protest timely filed on November 29, 1993, the protestant
contends that the potpourri imparts the essential character to
the potpourri vase and, therefore, they are properly classified
under subheading 3307.49.00, HTSUS, as other preparations for
perfuming or deodorizing rooms. Alternatively, if the glass vase
is deemed to impart the essential character to the potpourri
vase, the protestant contends that the glass vase should be
classified under subheading 7010.90.50, HTSUS, as other glass
containers used for the conveyance or packing of goods.
The competing subheadings are as follows:
3307.90.00 Pre-shave, shaving or after-shave preparations,
personal deodorants, bath preparations,
depilatories and other perfumery, cosmetic or
toilet preparations, not elsewhere specified or
included; prepared room deodorizers, whether or
not perfumed or having disinfectant properties...
Other.
7010.90.50 Carboys, bottles, flasks, jars, pots, vials,
ampoules and other containers, of glass, or a kind
used for the conveyance or packing of goods;
preserving jars of glass; stoppers, lids and other
closures, of glass...Other...Other containers
(with or without their closures)....
7013.99.50 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 $0.30 but not over $3 each.
ISSUE:
I. Was the protest timely filed for each of the protested
entries pursuant to 19 U.S.C. 1514(c)(2) and section
174.12(e), Customs Regulations (19 CFR 174.12(e))?
II. Are the potpourri vases classified under subheading
3307.90.00, HTSUS, as other preparations for perfuming or
deodorizing rooms, or under subheading 7010.90.50, HTSUS, as
other glass containers used for the conveyance or packing of
goods, or under subheading 7013.99.50, HTSUS, as other
glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes, valued over $0.30 but
not over $3 each.
LAW AND ANALYSIS:
I. Timely Filing of Protest
Protests against decisions of the appropriate Customs
officers must be in conformity with applicable statutory and
regulatory requirements. The statute, 19 U.S.C. 1514(c)(2)
provides in pertinent part, that a protest shall be filed "within
ninety days after but not before notice of liquidation...
(emphasis added)." The time period for filing a protest is
clearly stated in section 174.12(e), Customs Regulations (19 CFR
174.12(e)), which reads, in pertinent part, as follows:
(e) Time of filing.
Protests shall be filed, in accordance with section 514,
Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90
days after either:
(1) The date of notice of liquidation or reliquidation in
accordance with sections 159.9 or 159.10 of this
chapter....
Pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e), the
entries which were liquidated on August 27, 1993, were not timely
protested within 90 days from the date of notice of liquidation.
The above entries were not protested until November 29,
1993. The time period which elapsed between the date of the
notice of liquidation and the date of the filing of the protest
is greater than the 90-day period allowed for the filing of the
protest. Therefore, as this protest for the entries liquidated
on August 27, 1993, is not timely filed, it must be denied.
II. Tariff Classification
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to terms of the headings and any
relative section or chapter notes...."
No single heading covers the potpourri vases in their
entirety and, accordingly, classification cannot be accomplished
by application of GRI 1, HTSUS, alone. When, goods are prima
facie classifiable under two or more headings, GRI 3, HTSUS, is
applicable. In this case, classification is determined by
application of GRI 3(b), HTSUS, which provides:
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), shall be classified as if they consisted of the
material or component which gives them their essential
character, insofar as this criterion is applicable.
In the present situation, the potpourri vase is composed of
different components which are prima facie classified under
different headings. The potpourri is classified under heading
3307, HTSUS, the glass vase under heading 7013, HTSUS, and the
ribbon, flower and lace are classified under their respective
headings. To determine the proper classification of this
composite good, the essential character of the potpourri vase
needs to be determined.
In general, essential character has been construed to mean
the attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In understanding the language of
the HTSUS, Harmonized Commodity Description and Coding System
(HCDCS) Explanatory Notes (ENs) may be consulted. The ENs,
although not dispositive, 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. 89-90, 54
Fed. Reg. 35127, 35128 (August 23, 1989). EN Rule 3(b) (pg. 4-5), provides further factors which help determine the essential
character of goods. Factors such as bulk, quantity, weight or
value, or the role of a constituent material in relation to the
use of the goods are to be utilized, though the importance of
certain factors will vary between different kinds of goods.
The issue in this case is whether the essential character of
the potpourri vase is imparted by the potpourri or the glass
vase. We are of the opinion that the essential character of the
potpourri vase is the glass vase. The glass vase is the
component which serves to distinguish the potpourri vase.
Although the glass vase may be of a cheaper ("B" class) quality,
the consumer only sees a decorative glass vase which holds
potpourri for a fragrant decorative display. If the consumer
merely wanted to purchase potpourri, she/he could easily buy
potpourri in bags at a reduced cost. The glass vase actually
holds the potpourri and allows the consumer to see and smell the
potpourri. We do note that the protestant's cost breakdown
indicates that the potpourri is valued more than the glass vase.
However, the glass vase weighs more than the potpourri.
As evidence that the glass does not impart the essential
character, the protestant states that the lace lid cannot be
removed because it is glued into place. Therefore, the
protestant contends that the consumer cannot use the glass vase
for any other purpose then to hold the purchased potpourri.
Moreover, the protestant states that the consumer can replenish
the potpourri fragrance by adding oil through the lace lid. We
do not find this argument compelling. The lace lid can be easily
removed simply by peeling off the glue, which holds the ribbon
and lace lid in place, from the glass. The glass vase can then
be refilled with fresh or different scented potpourri, or used as
a decorative vase for any other purpose.
The protestant cites New York (NY) 852439 dated May 18,
1990, as evidence that the potpourri vase should be classified
under subheading 3307.90.00, HTSUS, as other preparations for
perfuming or deodorizing rooms. NY 852439 classified a pear
shaped glass sachet containing potpourri under subheading
3307.90.00, HTSUS. NY 854329 is factually distinguishable from
the potpourri vase at issue. The glass sachet was a tiny glass
container, whereas the glass vase is substantial. The glass vase
is a decorative article which is designed to hold and display the
potpourri contained therein.
Additionally, the protestant states that Headquarters Ruling
Letter (HRL) 952008 dated December 29, 1992, supports its
contention that the essential character of article in which
components of the article are packed in glass containers is
provided not by the glass, but by the other components. HRL
952008 classified a glass globe sitting inside a plastic basket
and containing a plastic rabbit figurine under subheading
3926.40.00, HTSUS, as other articles of plastic, and not under
heading 7013, as other glassware of a kind used for table,
kitchen, toilet, office, indoor decoration or similar purposes.
HRL 952008 dealt with a situation where plastic figurines were
present both in and outside the globe and, therefore, held that
the essential character was imparted by the plastic figurines.
However, when all figurines appear within the globe, we have
consistently held that the essential character is imparted by the
glass globe. See, HRL 087878 dated May 20, 1991, and HRL 088290
dated March 6, 1991, and HRL 951999 dated August 31, 1992. In
this case, the potpourri is all within the vase; there is no
material outside the vase, as was the case in HRL 952008.
Therefore, we do not find HRL 952008 persuasive.
In further support of its position, the protestant cites HRL
951021 dated April 9, 1992, which held that a heart-shaped metal
container filled with candle wax and a wick was classified under
subheading 3406.00.00, HTSUS, as a candle. HRL 951021 determined
that the small, light and inexpensive tin-plated container did
not impart the essential character to the article. After the
candle was spent, any use of the tin container was determined to
by minor or a fugitive use. The glass vase at issue is not
comparable to the tin container in HRL 951021. The glass vase is
substantial in that it is a decorative article designed to
display the potpourri. It allows the consumer to see the
different color potpourri pieces and to smell the potpourri
fragrance. Once the lace lid is removed, the glass vase can be
refilled with new or different scented potpourri or be reused for
any other decorative purposes. It is not similar to the
inexpensive tin-plated container which did not have a use after
the candle was spent.
The protestant has submitted evidence, in the form of a
consumer survey, to show that the essential character of the
potpourri vase is the potpourri. The consumer survey indicates
that consumers would primarily purchase the potpourri vase for
the potpourri, rather than the vase. Although we are of the
opinion that the glass vase imparts the essential character of
the potpourri vase, we cannot overlook the independent consumer
survey submitted by the protestant. After examining all the
evidence, we are of the opinion that it is impossible to
positively ascertain which of the two components imparts the
essential character to the potpourri vase.
GRI 3(c), HTSUS, states that goods which cannot be
classified by reference to GRI 3(a) or 3 (b), HTSUS, shall be
classified under the heading which occurs last in numerical order
among those which equally merit consideration. Therefore, the
potpourri vase is properly classified under subheading
7013.99.50, HTSUS, as other glassware of a kind used for table,
kitchen, toilet, office, indoor decoration or similar purposes,
valued over $0.30 but not over $3 each.
In the event that the essential character of the potpourri
vase is imparted by the glass vase, the protestant contends that
the glass vase should be classified under subheading 7010.90.50,
HTSUS, as other glass containers used for the conveyance or
packing of goods.
Headings 7010 and 7013, HTSUS, are both considered "use"
provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS,
states that:
[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.
EN 70.10 (pg. 933-934) states that heading 7010 "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 types of containers covered by this
heading include:
(A) Carboys, demijohns, bottles (including syphon vases), phials
and similar containers, of all shapes and sizes, used as
containers for chemical products (acids, etc.), beverages,
oils, meat extracts, perfumery preparations, pharmaceutical
products, inks, glues, etc.
(B) Jars, pots and similar containers for the conveyance or
packing of certain foodstuffs (condiments, sauces, fruit,
preserves, honey, etc.), cosmetic or toilet preparations
(face creams, hair lotions, etc.), pharmaceutical products
(ointments, etc.), polishes, cleaning preparations, etc.
(C) Ampoules, usually obtained from a drawn glass tube, and
intended to serve, after sealing, as containers for serums
or other pharmaceutical products, or for liquid fuels (e.g.,
ampoules of petrol for cigarette lighters), chemical
products, etc.
(D) Tubular containers and similar containers generally obtained
from lamp-worked glass tubes or by blowing, for the
conveyance or packing of pharmaceutical products or similar
uses.
The key phrase in this instance is "commonly used
commercially for the conveyance" of products. The root word of
"commercially" is commerce which is described as the exchange or
buying and selling of commodities. Webster's Third New
International Dictionary (1986) and The Random House Dictionary
of the English Language (1983). The root word of "conveyance" is
convey which is described as to carry, bring or take from one
place to another; transport; bear. The Random House Dictionary
of the English Language (1983) and Webster's Third New
International Dictionary (1986).
We are of the opinion that the glass vase is not principally
used as the class or kind of merchandise contemplated by heading
7010, HTSUS, are used. The types of containers found in heading
7010, HTSUS, are principally used to convey a product to the
consumer who uses the product in the container and then discards
the container. The glass vase at issue is not principally used
to commercially convey potpourri. The glass vase is necessary
for the consumer to use the product, potpourri. In use, the
glass vase holds the potpourri and allows the consumer to see and
smell the potpourri. The glass vase is not merely used as a
container to convey potpourri to the consumer, but is a
decorative article designed to display potpourri. As the glass
vase is a decorative article designed to display potpourri, it is
not properly classified under heading 7010, HTSUS.
The protestant cites HRL 951991 dated March 2, 1993, to
support classification of the glass vase under subheading
7010.90.50, HTSUS. HRL 951991 held that a green tinted glass jar
with an unattached cork top imported into the U.S. empty and then
filled with nuts was classified under subheading 7010.90.50,
HTSUS. HRL 951991 determined that the glass jars were not
decorative, but had an attractive appearance to entice the
consumer. Moreover, HRL 951991 stated that once the nuts were
consumed the jar was likely to be thrown away. Therefore, the
jars were used commercially for the conveyance or packing of
foodstuffs. As stated previously, the glass vases at issue are
not used to commercially convey or package a product to the
consumer. They serve as a decorative article designed to display
potpourri and can be used for other decorative purposes upon
removal of the glued lace lid. HRL 951991 is factually
distinguishable from this case.
HOLDING:
Pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e), this
protest for entries liquidated on August 27, 1993, is not timely
filed.
Pursuant to GRI 3(c), HTSUS, the potpourri vase is
classified under subheading 7013.99.50, HTSUS, as other glassware
of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes, valued over $0.30 but not over $3
each.
The protest is to be DENIED. 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