CLA-2 CO:R:C:M 956048 KCC
District Director
U.S. Customs Service
9400 Viscount, Suite 104
El Paso, Texas
RE: Protest 2402-93-100183; metal iron Pedestal with glass
vessel; timely protest; 19 U.S.C. 1514(c)(2); 19 CFR
174.12(e); 90 days; GRI 3(b); essential character; General
EN Rule 3(b)(IX); composite good; 7020; other articles of
glass; 7326; other articles of iron or steel; 9403; General
EN (A) to Chapter 94; furniture; Sprouse Reitz & Co.;
Furniture Import Corp.; 9405; lamps and lighting fittings,
not elsewhere specified or included
Dear District Director:
This is in response to Protest 2402-93-100183, which
pertains to the tariff classification of metal iron pedestals
with glass vessel under the Harmonized Tariff Schedule of the
United States (HTSUS). A videotape was submitted by the
protestant for our examination.
FACTS:
The article under consideration is a metal iron pedestal
with a glass vessel. The submitted videotape references model
number P-3001. However, submitted literature also references
model numbers P-3003 and P-3001/A. The models appear to only
differ in size and styling. They all have the common
characteristics of a metal iron pedestal which holds a glass
vessel.
The protestant states that the metal iron pedestals with
glass vessels are marketed as spirit lamps and votive candle
burners, as the basic design is derived from similar articles
used in the late 16th and 17th century by monasteries and
churches for illumination. However, the protestant also states
that this article is a "household decorative accessory whose use
is limited solely by the imagination of the user."
Upon importation, the numerous entries of the metal iron
pedestal with glass vessel were liquidated starting on July 16,
1993, through March 4, 1994, under subheading 7013.99.90, HTSUS,
as other glassware, valued over $5 each. This classification was
based on the opinion that the metal iron pedestal with glass
vessel was a composite good with the glass vessel imparting the
essential character.
In a protest filed on December 15, 1993, the protestant
states that the metal iron pedestal with glass vessel is a set
with the metal iron pedestal imparting the essential character.
Therefore, the protestant contends that it is properly classified
under subheading 7326.90.90, HTSUS, as other articles of iron or
steel. Alternatively, the protestant states that if the
essential character is determined to be the glass vessel, the
metal iron pedestal with glass vessel is properly classified
under subheading 7020.00.00, HTSUS, as other articles of glass.
The competing headings 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)....
7020 Other articles of glass.
7326 Other articles of iron or steel....
9403 Other furniture and parts thereof....
9405 Lamps and lighting fittings including searchlights and
spotlights and parts thereof, not elsewhere specified
or included; illuminated signs, illuminated nameplates
and the like, having a permanently fixed light source,
and parts thereof not elsewhere specified or
included....
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. What is the tariff classification of the metal iron pedestal
with glass vessel under the HTSUS?
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
following entries were not timely protested within 90 days from
the date of notice of liquidation.
ENTRY LIQUIDATED
328-00763131 September 10, 1993
328-00757950 September 10, 1993
328-00751516 September 10, 1993
328-00779863 September 3, 1993
328-00748231 September 3, 1993
328-00745369 August 27, 1993
328-00745542 August 20, 1993
328-00737820 August 13, 1993
328-00737440 August 6, 1993
328-00737093 July 30, 1993
328-00730429 July 23, 1993
328-00730247 July 16, 1993
The above entries were not protested until December 15,
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 above entries is not
timely filed, it must be denied.
Moreover, the protestant has failed to meet the statutory
requirement for timely filing a protest for the following
entries:
ENTRY LIQUIDATED
328-00848031 3-04-94
328-00846746 2-25-94
328-00846555 2-18-94
328-00846415 2-18-94
328-00831615 2-11-94
328-00831359 2-04-94
328-00831227 2-04-94
328-00779244 1-28-94
328-00779178 1-28-94
328-00795729 1-21-94
328-00795489 1-14-94
328-00795109 1-07-94
328-00794961 1-07-94
328-00784004 1-03-94
328-00783493 1-07-94.
As previously stated, this protest was filed on December 15,
1993, well before the above listed entries were liquidated.
Therefore, pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e),
this protest for the above listed entries is not timely filed and
must be denied.
II. 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...."
When, by application of GRI 2, HTSUS, 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.
Explanatory Note (EN) Rule 3(b)(IX) of the Harmonized
Commodity Description and Coding System (HCDCS) states that:
For the purposes of this Rule, 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 but also those with separable
components, provided these components are adapted one to the
other and are mutually complementary and that together they
form a whole which would not normally be offered for sale in
separate parts (emphasis in original).
The ENs although not dispositive, are to be looked to for the
proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
In this case, we are of the opinion that the metal iron
pedestal with glass vessel is not a set, but is a composite good.
The components of the article, the metal iron pedestal and glass
vessel, are adapted one to the other, mutually complementary, and
together form a whole which would not normally be offered for
sale in separate parts. Therefore, we need to determine which
component imparts the essential character.
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 addition, EN Rule 3(b) (pg. 4),
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.
Based on the information submitted, we are of the opinion
that the essential character of the metal iron pedestal with
glass vessel is the glass vessel. The glass vessel is the
component with distinguishes the article. It is the more
attractive component which appeals to the consumer. The glass is
the component which fulfills the function of the article; it
holds the object to be displayed such as, flowers, plants, wine
bottles, candles, etc. The metal iron pedestal merely supports
the glass vessel. Therefore, the glass vessel imparts the
essential character to the metal iron pedestal with glass vessel.
The glass vessel is classified under heading 7013, HTSUS.
EN 70.13 (pgs. 936-936a), states that heading 7013, HTSUS,
covers:
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 (emphasis in original).
The glass vessel is ornamental glassware similar to a vase,
although as the protestant has stated, it can not stand by
itself. Even though the glass vessel can be used for both indoor
and outside decoration, it is of the class or kind of article
classifiable under heading 7013, HTSUS. Inasmuch as the
essential character is imparted by the glass vessel, the entire
composite good (metal iron pedestal with glass vessel) is,
therefore, classified under the tariff classification of the
glass vessel. As the value of the metal iron pedestal with glass
vessel is over $5 each, it is classified under subheading
7013.99.90, HTSUS, as other glassware, valued over $5 each.
Alternatively, the protestant contends that the glass vessel
is classified as other articles of glassware under heading 7020,
HTSUS. EN 70.20 (pg. 945) states that:
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 (emphasis in
original).
As stated previously, the glass vessel is properly
classified under subheading 7013.99.90, HTSUS. Therefore,
pursuant to EN 70.20, it is not classified under heading 7020,
HTSUS, as other articles of glass.
It has been suggested that the metal pedestal with glass
vessel may be classifiable under heading 9403, HTSUS, as other
furniture and parts thereof. General EN (A) to Chapter 94 (pg.
1574), defines furniture as:
Any "movable" articles (not included under other more
specific headings of the Nomenclature), which have the
essential characteristic that they are constructed for
placing on the floor or ground, and which are used, mainly
with a utilitarian purpose, to equip private dwelling,
hotels, theatres, cinemas, offices....Similar articles
(seats, chairs etc.) for use in gardens, squares,
promenades, etc. are also included in this category
(emphasis in original).
The metal iron pedestal with glass vessel is a movable
article which is constructed for placing on the floor or ground.
However, we are of the opinion that the article is not mainly
used for a utilitarian purpose. In determining whether certain
articles are classifiable as furniture, there is a clear
distinction between an article of utility and those used
primarily for ornamentation. See, Sprouse Reitz & Co., v. United
States, 67 Cust. Ct. 209, C.D. 4276 (1971), and Furniture Import
Corp., v. United States, 56 Cust. Ct. 125, C.D. 2619 (1966).
As stated by the protestant, the metal iron pedestal with
glass vessel is a subsidiary article designed for ornamentation.
It is not an article designed for a utilitarian purpose.
Moreover, the protestant has described this article as a
"household decorative accessory." Therefore, the metal pedestal
with glass vessel is not classified as furniture under heading
9403, HTSUS.
Additionally, it has been suggested that the metal iron
pedestal with glass vessel is classifiable under heading 9405,
HTSUS, as lamps and lighting fittings, not elsewhere specified or
included. We are of the opinion, that classification under
heading 9405, HTSUS, in inappropriate. Protestant has stated
that this article is a "household decorative accessory whose use
is limited solely by the imagination of the user." The metal
iron pedestal with glass vessel does not belong to the class or
kind of lamps and lighting fittings classifiable under subheading
9405, HTSUS. Even though it is marketed as a spirit lamp and
votive candle burner with its basic design derived from similar
articles used in the late 16th and 17th century by monasteries
and churches for illumination, it can be used for any purposes
that the buyer desires. It is a decorative article which is not
classifiable under heading 9405, HTSUS.
HOLDING:
Pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e), this
protest for entries 328-00763131, 328-00757950, 328-00751516,
328-00779863, 328-00748231, 328-00745369, 328-00745542, 328-00737820, 328-00737440, 328-00737093, 328-00730429 and 328-00730247, 328-00848031, 328-00846746, 328-00846555, 328-00846415,
328-00831615, 328-00831359, 328-00831227, 328-00779244, 328-00779178, 328-00795729, 328-00795489, 328-00795109, 328-00794961,
328-00784004 and 328-00783493 is not timely filed.
The metal iron pedestal with glass vessel is a composite
good with the essential character imparted by the glass vessel.
Therefore, it is classified under subheading 7013.99.90, HTSUS,
as other glassware, valued over $5 each.
The protest is 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, Lexis, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division