CLA-2 RR:CR:GC 960962 PH
Port Director
U.S. Customs Service
Post Office Box 3130
Laredo, Texas 78044
RE: Protest 2304-96-100344; bell-shaped glassware with metal
stand; simmer vase; potpourri scenter; caged glass; stoves
and similar nonelectric domestic appliances, other
appliances; candle holder; glassware for table, kitchen,
toilet, office, indoor decoration; principal use; basket
provision; essential character; ejusdem generis; composite
good; goods put up in sets for retail sale; GRIs 3(b); U.S.
Additional Note 1(a); ENs 70.13; 70.06; 70.09; Rule
3(b)(IX); Rule 3(b)(X); Better Home Plastics Corp. v. United
States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969
(Fed. Cir. 1997); HQs 085075; 089054; 952405; 955857;
955935; 956810; 957654; 960499; 960503; NYs 818540; 888716;
894791; A80401; A81346; A84166; B88280
Dear Port Director:
This is our decision on protest 2304-96-100344, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain glassware articles. Samples were
provided. In preparing this decision, consideration was also
given to the supplemental submission of the protestant dated
September 5, 1997.
FACTS:
Twenty-five entries are protested. As you correctly noted,
the protest was filed more than 90 days after liquidation of one
of the entries and it was filed prior to liquidation in the case
of ten of the entries); therefore, the protest is DENIED as to
those entries (see 19 U.S.C. 1514(c)(3)(A)) (we note that
thirteen of these entries were timely protested in a subsequent
protest). This ruling addresses only the entries timely
protested in protest 2304-96-100344.
The entries were filed between May and August of 1996. The
entries were liquidated between August and November of 1996, with
classification of the merchandise under consideration in
subheading MX7013.99.50 or MX7013.99.80, HTSUS, depending on unit
value (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 broker filed this protest with Customs on
November 26, 1996, against the classification of the following
articles:
Invoice# Importer's Title and Description
11911 7" Simmer Vase - Bell-shaped (rounded bottom,
cylinder shaped body), with approximately 1/2"
rim, 4" in top diameter (including rim), 3 3/4" in
depth, with 3 1/2" wide and 6 1/2" high metal
stand 5/8" above the base of which is a circular
metal form stated to be for a candle.
11912 8" Simmer Vase - Glassware with flat base 3 3/16"
in diameter, cylinder shaped body for
approximately 1" from the base, then widening
sharply to a width of 6 1/2", height of 2 1/8",
with a 3 11/16" wide and 7 3/8" high metal stand 2
1/2" above the base of which are fittings for a
small metal platform (accompanying article) stated
to be for a candle.
11940 6" Mini Deco - Similar in shape to a pith helmet
(rounded with a large rim), 5 7/8" in diameter, 2
3/8" in depth, with a 4 5/8" wide and 4 7/8" high
metal stand into which it fits, relatively thin
glass, clear in the rounded part and lightly
frosted on the rim (sample provided).
11941 8 1/2" Deco Bowl - Similar in shape to a pith
helmet (rounded with a large rim), 8 1/2" in
diameter, 3 1/2" in depth, with a 6 1/2" wide and
5 1/4" high metal stand into which it fits,
relatively thin clear glass (sample provided).
11943 Bolero Bowl - Flat base 3 3/16" in diameter,
cylinder shaped body for approximately 1" from the
base, then widening sharply to a width of 6 1/2",
height of 2 1/8", with a 4" wide and 2 1/4" metal
stand.
11944 Cage Bubble - Pumpkin shape (flat base, rounded
sides, opening of the same width as the base),
appears to have been blown into iron frame so that
glass may not be removed without damage to frame
or glass, diameter at mid-point 4", base and top
diameter 2 1/4", depth of 3 5/16".
11946 6" Tubular Bell Jar - Bell-shaped (rounded bottom,
cylinder shaped body), with approximately 1/2"
rim, 3 5/8" in top diameter (including rim), 4
1/2" in depth, with 3 1/2" wide and 6" high metal
stand.
11947 8" Tubular Bell Jar - Bell-shaped (rounded bottom,
cylinder shaped body), with approximately 1/2"
rim, 3 5/8" in top diameter (including rim), 4
1/2" in depth, with 3 1/2" wide and 8" high metal
stand.
11948 10" Tubular Bell Jar - Bell-shaped (rounded
bottom, cylinder shaped body), with approximately
1/2" rim, 3 5/8" in top diameter (including rim),
4 1/2" in depth, with 3 1/2" wide and 10" high
metal stand.
In regard to items 11911 and 11912, the protestant states
that these articles "perform the same function as the potpourri
scenters [ruled upon by Customs in HQ 085075 dated November 11,
1989], except that [these] items use a candle to heat the
potpourri or the liquid potpourri concentrate." The protestant
states that these articles "are in a condition and put up in
retail packages at the time of import for the purpose of heating
the potpourri in order to release an aroma." The protestant
states that the articles are marketed "as an item which serves
this use" and that the importer continues to sell the material
consumed by these items. Citing NY A81346 dated April 2, 1996,
in addition to HQ 085075, the protestant contends that the
correct classification for these articles is subheading
7321.83.00.50, HTSUS.
In regard to item 11941, the protestant states that it
believes the article is not purchased by the consumer for any
decorative purpose, it is purchased for the purpose of holding
the products sold by the importer (stated to be potpourri, liquid
potpourri, and candles). The protestant states that the item is
not large enough to be used as a vase, bottle holder, or
ornamental fruit bowl. Citing the results of a consumer survey
(described below), Harmonized Commodity Description and Coding
System Explanatory Note (EN) 70.20, and HQs 089054 dated August
2, 1991; 952405 dated November 4, 1992; and 955857 dated August
11, 1994, the protestant contends classification should be in
subheading 7020.00.00, HTSUS.
In regard to the remaining items, the protestant states that
it believes them to be "of the class or kind used as candle
holders." The protestant provides marketing literature depicting
the articles as candle holders. Citing NYs A80401 dated March 7,
1996; 888716 dated August 20, 1993; 818540 dated February 23,
1996; and A84166 dated June 28, 1996; and HQs 955935 dated March
13, 1994, and 957654 dated February 27, 1996, the protestant
contends that the correct classification for these articles is
subheading 9505.50.40, HTSUS.
The subheadings under consideration are as follows:
7013.99 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.
The 1996 general column one rate of duty for goods classifiable
under subheading 7013.99.50 (valued over $0.30 but not over $3
each) is 30% ad valorem (24% ad valorem for goods of Mexico
qualifying for NAFTA treatment); that for goods classifiable
under subheading 7013.99.80 (valued over $3 each, other) is 14.3%
ad valorem (12% ad valorem for goods of Mexico qualifying for
NAFTA treatment).
7020.00.00 Other articles of glass.
The 1996 general column one rate of duty for goods classifiable
under this provision is 6% ad valorem; goods of Mexico qualifying
for NAFTA treatment are duty-free.
7321.83.00 Stoves, ranges, grates, cookers ..., barbecues,
braziers, gas rings, plate warmers and similar
nonelectric domestic appliances, and parts
thereof, of iron or steel: ... Other appliances:
... For solid fuel.
The 1996 general column one rate of duty for goods classifiable
under this provision is 2.5% 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 1996 general column one rate of duty for goods classifiable
under this provision is 7% ad valorem; goods of Mexico qualifying
for NAFTA treatment are duty-free.
ISSUE:
Whether the glassware is classifiable as glassware of a kind
used for indoor decoration or similar purposes in subheading
7013.99.50 or 7013.99.80, HTSUS, other articles of glass in
subheading 7020.00.00, HTSUS, other nonelectric domestic
appliance of iron or steel for solid fuel in subheading
7321.83.00, HTSUS, or other non-electrical lamps and lighting
fittings in subheading 9405.50.40, HTSUS.
LAW AND ANALYSIS:
Initially, we note that, except as stated above, 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.
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).
Insofar as the applicability of subheading 7020.00.00,
HTSUS, is concerned, we note that this subheading is a so-called
"basket" provision. In such provisions, classification "is
appropriate only when there is no tariff category that covers the
merchandise more specifically" (Apex Universal, Inc., v. United
States, CIT Slip Op. 98-69 (May 21, 1988)). Therefore, 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.
The "cage bubble" article (item 11944) is a composite good
(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 ..."). The 7" "simmer vase" (item 11911), the
two "deco" articles and three "tubular bell jars" (items 11940,
11941, 11946, 11947, and 11948), consisting of glassware with a
metal stand, with the glassware shaped so that it cannot stand on
its own (without being supported by the stand), are also
composite goods (see, e.g., HQs 956810 dated November 28, 1994,
and 957794 dated October 2, 1995). The 8" "simmer vase" and the
"bolero bowl" (items 11912 and 11943), consisting of glassware
with a metal stand, with the glassware shaped so that it can
stand on its own, are goods put up in sets for retail sale (EN
Rule 3(b)(X)). Whether composite goods or sets, under GRI 3(b),
classification of the articles is determined on the basis of the
component which imparts the essential character (the difference
is that if an article is a composite good, the unit value is
determined by the value of the entire good (total of all
components), whereas if the article is a set, the unit value is
determined by the value of the component which imparts the
essential character to the set; see EN Rule 3(b)(X), last
paragraph).
In HQs 960499 dated July 8, 1998, and 960503 dated July 9,
1998, we considered the essential character of articles similar
to those under consideration, certain "caged glass" articles in
which glass is blown into an iron framework, and cone-shaped
glassware with a metal pedestal or stand. We concluded, on the
basis of cited Court decisions (Better Home Plastics Corp. v.
United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d
969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United
States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and
reconsideration denied, 994 F. Supp. 393 (CIT 1998); and Vista
International Packaging Co., v. United States, 19 CIT 868, 890 F.
Supp. 1095 (1995)), 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 clearly the glass
component. The same is true of each of the items under
consideration, except for the two "simmer vases" (items 11911 and
11912, addressed below). For the same reasons as in HQs 960499
and 960503, the LAW AND ANALYSIS portion of which is incorporated
by reference into this ruling, we conclude that the essential
character of these articles (not including items 11911 and 11912)
is given by the glass component.
Subheadings 7013.99 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 HQs 960499 and 960503 (referred to above), we addressed
the issue of principal use 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 (the rulings which were the subject of this notice
included NYs A80401, 888716, 818540, and A84166, each cited by
the protestant). 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.
This conclusion is consistent with the rulings cited by the
protestant in this regard (see above).
In HQ 960499, we applied the above criteria in determining
the principal use of articles similar to the "cage bubble"
article. 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 frame, sometimes called "caged glass") and its size.
In the case of this form or shape also, 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 "cage bubble" and each of the "tubular bell jars" (items
11944, 11946, 11947, and 11948) are of one of the above-described
forms or shapes and are of a size, based on the above-described
information, which indicates their inclusion in the class or kind
of goods principally used as candle holders. This is consistent
with the pertinent factors listed by the Courts for determining
principal use (see above). That is, in regard to physical
characteristics, the small size of the openings prevents easy
access and the appearance of the articles (as illustrated in the
literature provided by the protestant) provides, in the words of
advertising literature for similar articles, "[a] dramatic
display for candles". 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 small
caged glass articles as candle holders. These articles are
classified as non-electrical lamps and lighting fittings in
subheading 9405.50.40, HTSUS.
The two "deco bowls" and the "bolero bowl" (items 11940,
11941, and 11943) are not of one of the above-described shapes or
forms, and their dimensions are 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 and
the relatively shallow depth make for easy, convenient access;
for example, as illustrated in the literature provided by the
protestant, the dimensions enable the articles to be used as
potpourri scent dispensers (the wide opening enables more
potpourri to be "aired")). 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 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.
The protestant contends that the 8 1/2 "deco bowl" is not
purchased for any decorative purpose, it is purchased to hold
potpourri or candles. The protestant provides the results of a
telephone survey purported to show that "[the protestant's] 6"
potpourri bowl and 8.5" potpourri bowl would be primarily used as
a vehicle for consumers to enjoy the beauty and fragrance of [the
protestant's] botanical potpourri and floating candles."
EN 70.13 makes clear that these uses are included within the
provision for indoor decoration in heading 7013, HTSUS. EN 70.13
states that the types of articles covered by heading 7013
include:
Glassware for indoor decoration and other glassware ... such
as vases, ornamental fruit bowls, statuettes, fancy articles
(animals, flowers, foliage, fruit, etc.) table-centres ...,
aquaria, incense burners, etc., and souvenirs bearing views.
The "deco bowls" and the "bolero bowl" are of the same kind
as these articles (e.g., table centres and incense burners; we
note that the protestant describes the "deco bowls" as "potpourri
bowl[s]" in its survey). Applying the ejusdem generis ("of the
same kind") rule of construction ("[a]s applicable to
classification cases, ejusdem generis requires that the imported
merchandise possess the essential characteristics or purposes
that unite the articles enumerated eo nomine in order to be
classified under the general terms", Sports Graphics, Inc. v.
United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994), citing
Nissho-Iwai Am. Corp. v. United States, 10 CIT 154, 157, 641 F.
Supp. 808 (1986)), we conclude that the uses described by the
protestant are uses for indoor decoration under heading 7013.
These articles (items 11940, 11941, and 11943) are classified as
other glassware of a kind used for indoor decoration or similar
purposes in subheading 7013.99.50, HTSUS.
We have considered the applicability of the rulings cited by
the protestant. In regard to the telephone survey, it is true
that we stated in HQ 955857, cited by the protestant, that we
could not overlook the consumer survey in that case. However, in
that case (involving potpourri in a glass vase with a lace and
ribbon cover) the results of the survey directly supported the
potpourri as giving the article its essential character (by
contrast, as demonstrated above, the results of the survey in
this case are not inconsistent with use of the articles for
indoor decoration or similar purposes). Furthermore, the survey
in HQ 955857 was not conclusive (classification was on the basis
of GRI 3(c)). Also, the Court decisions on essential character
since this ruling (e.g., Better Home Plastics Corp. v. United
States, supra), may raise questions as to the correctness of the
decision.
HQ 952405, cited by the protestant, involved the
classification of "dummy bottles" (bottles used for display
purposes to market goods). Classification was in subheading
7020.00.00, HTSUS, on the basis of the statement in EN 70.10 that
such "[s]pecial display bottles ..." are not included in heading
7010, but are classified under heading 7020. The articles under
consideration are not such "[s]pecial display bottles". HQ
957654, also cited by the protestant, is distinguished because in
that case "[t]he relatively small size of each glass vessel
together with its interior depth and diameter, and its decorative
pattern cut in the glass to enhance the patterns created by the
flickering candle, [were] all physical characteristics consistent
with a candle holder's purpose." The form of the articles in HQ
957654 (globular, with the literature in the file indicating that
the diameter was 5" or less, so that the openings would be less),
size, and appearance all differ from the articles under
consideration. In HQ 089054, cited by the protestant, the
articles were "spice jars, spice bottles, cruets, and a pitcher
vase", distinguished from the glassware for indoor decoration
under consideration (see EN 70.13, discussed above).
In the case of the "simmer vases" (items 11911 and 11912),
the articles are used to heat potpourri in order to release the
aroma from the potpourri. The metal component of the items is
described in heading 7321 (i.e., it is similar to, or "of the
same kind" as, the articles listed therein; see Sports Graphics,
Inc. v. United States, supra). The glass component of the items
is described elsewhere in the HTSUS (see above, in regard to the
"tubular bell jar" items and the "bolero bowl" item). Thus,
pursuant to GRI 3(b), classification of these articles is
determined on the basis of the component which imparts the
essential character to the articles.
As stated above, the Courts have looked to the role of the
constituent materials in relation to the use of the goods in
determining "essential character" for purposes of GRI 3(b). As
with the plastic liner of the shower curtain sets in Better Home
Plastics Corp. v. United States, supra, the "indispensable
function" of these articles is heating that which is put in the
glassware. That function is performed by the the metal
component. These articles (items 11911 and 11912) are classified
as stoves, ranges, grates, cookers, barbecues, braziers, gas
rings, plate warmers and similar nonelectric domestic appliances,
other appliances for solid fuel, in subheading 7321.83.00, HTSUS.
(See NYs B88280 dated August 19, 1997, and A81346, cited by the
protestant.)
HOLDINGS:
(1) The "cage bubble" and each of the "tubular bell jars"
(items 11944, 11946, 11947, and 11948) are classified as non-electrical lamps and lighting fittings in subheading 9405.50.40,
HTSUS.
(2) The two "deco bowls" and the "bolero bowl" (items 11940,
11941, and 11943) are classified as other glassware of a kind
used for indoor decoration or similar purposes in subheading
7013.99.50, HTSUS.
(3) The "simmer vases" (items 11911 and 11912) as stoves,
ranges, grates, cookers, barbecues, braziers, gas rings, plate
warmers and similar nonelectric domestic appliances, other
appliances for solid fuel, in subheading 7321.83.00, HTSUS.
The protest is GRANTED in part (as to items 11944, 11946,
11947, and 11948 (classified in subheading 9405.50.40, HTSUS) and
items 11911 and 11912 (classified in subheading 7321.83.00,
HTSUS) and DENIED in part (as items 11940, 11941, and 11943). 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