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HQ 955857




August 11, 1994

CLA-2 CO:R:C:M 955857 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

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

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