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