United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1998 HQ Rulings > HQ 960954 - HQ 961085 > HQ 960962

Previous Ruling Next Ruling
HQ 960962




July 15, 1998

CLA-2 RR:CR:GC 960962 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50; 7321.83.00; 9405.50.40

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

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,

Previous Ruling Next Ruling

See also: