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HQ 089164


July 23, 1992

CLA-2 CO:R:C:M 089164 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.90

District Director
U.S. Customs Service
P.O Box 9516
El Paso, TX 79985

RE: Protest No. 2402-90-00100; glass display case; vitrine; heading 9403; Legal Note 2 to Chapter 94; General Explanatory Notes (A) & (B) to heading 94; Explanatory Note 94.03; HRL 088958; Furniture Import Corp. v. United States; Sprouse Reitz & Co. vs. United States.

Dear Sir:

The following is our response to the Protest and Request for Further Review No. 2402-90-00100, dated December 19, 1990, concerning the classification of glass and brass display cases under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Two samples of the glass and brass display cases along with brochures depicting various styles of the display cases were submitted for our review by the Franklin Mint. The cases are designed to display and protect collectibles and ornamental objects. The first sample display case is rectangle shaped and has four shelves; each shelf has three openings. It is approximately 21 inches in height. The width varies from 12 inches at the top shelf to 14 inches at the bottom shelf. It is crafted of clear glass with connective base and top pieces made of brass. Four brass feet are mounted near the corners of the case's bottom. An illustration in one of the brochures depicts this case displaying 12 miniature sculptures portraying Egyptian treasures.

The second sample glass display case is square shaped and has four shelves; each shelf has three openings. It is approximately 18 inches in height and 15-1/4 inches in width. It is also crafted of clear glass with connective base and top pieces made of brass. Four brass feet are mounted near the corners of the case's bottom. An illustration in one of the brochures depicts this case displaying a variety of miniature houses.

Upon importation the display cases were classified in subheading 7013.99.90, HTSUS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, valued over $5 each, dutiable at the rate of 7.2% ad valorem.

Counsel for protestant contends that the glass display cases are classified in subheading 9403.80.60, HTSUS, which provides for other furniture and parts thereof, furniture of other materials, other, dutiable at the rate of 4% ad valorem. Articles classified under this subheading may be entered duty free from Mexico under the Generalized System of Preferences.

ISSUE:

Are the glass display cases classified as furniture in subheading 9403.80.60, HTSUS, or as other glassware in subheading 7013.99.90, HTSUS.

LAW AND ANALYSIS:

It is the protestant's position that the subject glass display cases are furniture in that they are similar to items listed as furniture in Harmonized Commodity Description and Coding System Explanatory Note (EN) 94.03. It is claimed that they are substantial articles that are used to equip a home. Protestant contends that the glass display cases are a type of cabinet/show case, called a vitrine, that are utilitarian in that they will store and protect collectibles. The showcases are designed to be placed on other furniture such as desks, bookcases or tables.

In support of the protestant's position, counsel forwarded two representative samples of the display cases and a comprehensive submission, dated October 17, 1991, which contains discussions on and illustrations of cabinets, curio cases and vitrines from various sources. These definitions state that a vitrine is considered to be a type of cabinet intended for use as a display case. The following is a representation of some of the definitions of cabinets and vitrines cited in protestant's submission:

The Encyclopedia of Furniture, p. 26, in discussing the definition of cabinets states: "Small cabinet-stands appeared in the 18th century as accents in architectural decoration, and for the housing and display of collections of objets d'art, and curios."

The Dictionary of Antiques and the Decorative Arts, p. 507, defines vitrines as follows: "In French cabinetwork; the name given to a form of cabinet introduced during the Louis XVI style. It was designed with one or two glazed doors and was fitted with shelves. The vitrine was especially designed to hold and display fine porcelain and other small objects of art. As a rule it was a rather plain article of furniture so that it would not detract from its contents. The vitrine was designed in different sizes. The very small vitrine was sometimes placed on a table or on a commode."

Furthermore, protestant argues that the classification of the subject display cases as furniture is supported by Furniture Import Corp. v. United States, 56 Cust. Ct. 125, C.D. 2619 (1966), which dealt with the issue, under the Tariff Act of 1930, of whether a variety of articles, including wall cabinets, sconces and plaques, were classified as furniture. Two items described as wall cabinets were conceded by the government to be furniture. The first wall cabinet had two glass doors, two shelves and it measured 31 x 21 x 8 inches. The second cabinet had a glass front, one glass door, two shelves and it measured 46 x 25-1/2 x 7-1/4 inches. Two other items described as wall cabinets were not conceded by the government to be furniture. The first item was an open wall cabinet with one shelf and it measured 25 x 16 x 4-1/2 inches. The second item was a wall cabinet with an open center having two shelves and portions on each side closed by doors. It measured 17 x 19 x 4-1/2 inches. The government argued that these were not furniture because they were of a smaller size and were not substantial enough to support objects of weight, but were more akin to knickknack shelves and were entirely ornamental in character. Furniture Import, at 133. The court rejected the government's reasoning and stated that "[t]his appears to be a distinction without a significant difference." Id. at 133.

In determining that the latter two cabinets were furniture, the court held, that, while it was true that these two items were smaller and would only hold small objects, they were otherwise of the same type as the first two cabinets and they were designed and used for holding objects for display. In conclusion, the court stated that "'house furniture' meant articles having utility for the use, convenience, and comfort of the house dweller and not subsidiary articles designed for ornamentation alone." Furniture Import, at 133.

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUS. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 9403, HTSUS, provides for other furniture and parts thereof. Legal Note 2 to Chapter 94, HTSUS, reads as follows:

2. The articles (other than parts) referred to in headings Nos. 94.01 to 94.03 are to be classified in those headings only if they are designed for placing on the floor or ground.

The following are, however, to be classified in the above-mentioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:

(a) Cupboards, bookcases, other shelved furniture and unit furniture;

(b) Seats and beds.

General ENs (A) and (B) to Chapter 94 state the following on page 1574:

For the purposes of this Chapter, the term "furniture" means:

(A) 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 dwellings, hotels, theatres, cinemas, offices,. . . .

(B) The following:

(i) Cupboards, bookcases, other shelved furniture and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture.

(ii) Seats or beds designed to be hung or to be fixed to the wall.

Legal Note 2 to Chapter 94, HTSUS, excludes from headings 9401 to 9403 articles not designed to be placed on the floor or ground. The subject glass display cases are not designed to be placed on the floor or ground. However, it is protestant's argument that the subject display cases are "other shelved furniture" and, therefore, they fit within one of the exceptions to Legal Note 2. Consequently, if the glass display cases meet the definition of "other shelved furniture" they are not barred from classification in heading 9403 by Legal Note 2 and should be classified as other furniture under subheading 9403.80.60, HTSUS. However, it is not enough to show that an article is "shelved furniture" for it to qualify as furniture. It must also be "designed to be hung, to be fixed to the wall or to stand one on the other or side by side". The glass display cases are obviously not so designed.

Furthermore, in determining the classification of the subject glass display cases, Headquarters Ruling Letter 088958, dated June 18, 1991, is pertinent as it deals with the scope of the term "other shelved furniture" in Chapter 94, HTSUS. This ruling states that the key word in the phrase "other shelved furniture" is furniture. The word "shelved" is describing the similarity to the enumerated articles, that is, cupboards and bookcases. The similarity, however, does not end only in being shelved. The specific examples stated in Legal Note 2(a) are substantial articles having the essential characteristic that they are used to equip a home, office, etc. Furthermore, cupboards and bookcases are articles bought and sold by the furniture trade. Most important, they are not small furnishings, fixtures, or knickknacks.

HRL 088958 states that it is Customs position that Legal Note 2(a) should be interpreted as follows:

Only articles which are "furniture" similar to cupboards and bookcases in that they are substantial articles having the essential characteristic that they are used to equip a home, office, etc., and incorporate shelves in their construction, whether or not they are designed to be hung or fixed to the wall, are classifiable as "furniture" under heading 9403, HTSUSA.

Thus, HRL 088958 held that three different shelves (including one shelf that had drawers), ranging in size from 34- 1/4 x 3-3/4 inches to 27-1/2 x 5-3/4 inches to 15-1/2 x 2-3/4 inches, were not classified as furniture. Customs held that the shelves were not similar to the listed examples of furniture in EN 94.03. Moreover, these articles were more akin to small furnishings and they were not substantial articles having the essential characteristic that they were being used to equip a home. Additionally, heading 9403, HTSUS, excluded builders' fittings, such as shelves from being classified in heading 9403, HTSUS. See, EN (c) to heading 9403, page 1579.

When placed in the proper context of the Legal Notes and the ENs to Chapter 94, it becomes clear that the drafters of the HTS intended to limit the classification under Chapter 94 for certain articles which are constructed not to be placed on the floor or ground. The exceptions are listed. It was not the intent of the HTSUS to include under the furniture headings of Chapter 94 small furnishings which have essentially the character of ornaments rather than furniture. It is our view that the list of exceptions should not be interpreted so as to frustrate its original purpose.

With respect to the intent of the drafters of the HTS, General EN to Chapter 94 at page 1574 makes the following relevant comments:

Except for the goods referred to in subparagraph (B) above, the term "furniture" does not apply to articles used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling.

It therefore follows that this Chapter does not cover other wall fixtures such as coat, hat and similar racks, key racks, clothes brush hangers and newspaper racks, nor furnishings such as radiator screens. Similarly, the Chapter excludes the following types of goods not designed for placing on the floor: small articles of cabinet-work and small furnishing goods of wood (heading 44.20), and office equipment (e.g., sorting boxes, paper trays) of plastics or of base metal (heading 39.26 or 83.04).

As stated above, the General ENs to Chapter 94 exclude from the definition of furniture small articles of cabinet-work. Though the ENs refer to wood cabinets, this is indicative of the drafters intent to exclude all small furnishings.

It is our position, based on the intent of the drafters of the HTS and Customs interpretation of the Legal Notes and ENs to Chapter 94, that the subject display cases are not classified as furniture. While the glass cases may be more than just shelves, they are not substantial articles having the essential characteristic that they are being used to equip a home. They are akin to small furnishings and small cabinet-work. As they are not substantial articles, they are not similar to the exemplars listed in the General ENs (A) and (B) to Chapter 94.

In Sprouse Reitz & Co., v. United States, 67 Cust. Ct. 209, C.D 4276 (1971), the court dealt with the issue of whether spice racks were classified as furniture. The spice racks were designed to be hung on the wall in the home to hold bottles of spices. One of the spice racks had drawers which could be used to store tea bags, condiments or other items. Sprouse, at 210. In determining that the spice racks were not furniture, the court looked to the definition of the term "furniture" in headnote 1, subpart A, part 4 of schedule 7 of the Tariff Schedules of the United States (the precursor to the HTSUS) and decided that the spice racks were not listed as examples of items classified as furniture. The court held that the spice racks were more decorative than utilitarian, offered to the public as accessories to furniture and they were inexpensive. Moreover, the spice racks were held to be appendages of the house designed for its ornamentation and they were comparatively minor in importance so far as personal use, convenience and comfort were concerned.

The court in Sprouse also discussed the holding in the 1966 Furniture Import case. The court stated that Furniture Import, in determining whether certain articles were classified as furniture, made a clear distinction between articles of utility and those used primarily for ornamentation. Id., at 218. Therefore, in Furniture Import, utility was the crucial feature of "furniture" and if an article had utility for the use, convenience and comfort of the house dweller and was not a subsidiary article designed for ornamentation alone, it was classified as furniture. Since the wall cabinets in Furniture Import were useful and not designed just for ornamentation, they were considered furniture. However, as discussed above, the court in Sprouse did not just look to the utility of the item as the deciding factor. If they had just looked to the utility of the spice racks, the fact that the racks were useful for holding and storing certain kitchen items would have determined their classification as furniture.

The spice racks in Sprouse were articles that involved almost daily use. For example, spice jars are articles that are constantly being taken off and put back on the rack. Yet, the court held that the spice racks were more decorative than utilitarian and were not classified as furniture. However, the objects d'art in the glass display cases under consideration are most likely never taken out on a regular basis. Like the spice racks, the glass display cases are also attractive and decorative. Given the function and the size of the glass display case, it is more ornamental than utilitarian and it is considered an appendage of the house designed for its ornamentation. It is comparatively minor in importance so far as personal use, convenience and comfort are concerned.

Congress has indicated that earlier tariff rulings must not be disregarded in applying the HTSUS. The conference report to the 1988 Omnibus Trade Bill, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). Since the subject nomenclature in the TSUS and HTSUS are essentially similar, specifically headnote 1, subpart A, part 4, schedule 7, TSUS, and the Legal Notes to Chapter 94, HTSUS, this case lends support to Custom's position that the subject display cases are more akin to small furnishings and are not classified as furniture.

HOLDING:

The glass display cases are classified in subheading 7013.99.90, HTSUS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, valued over $5 each, dutiable at the rate of 7.2% ad valorem.

The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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