CLA-2 RR:CR:GC 960503 PH

Port Director
U.S. Customs Service
Post Office Box 3130
Laredo, Texas 78044

RE: Protest 2304-96-100078; caged glass; glassware with glass blown into metal framework; cone-shaped glassware with metal stand; candle holder; glassware for table, kitchen, toilet, office, indoor decoration; principal use; basket provision; essential character; composite good; GRI 3(b); U.S. Additional Note 1(a); ENs 70.13; 70.06; 70.09; HQ 956810; 957794; 960475; 960499

Dear Port Director:

This is our decision on protest 2304-96-100078, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain glassware blown into metal frames and a glass "CONE" with metal base. In preparing this decision, consideration was also given to supplemental submissions dated April 9 and June 5, 1997, from counsel for the protestant.

FACTS:

The merchandise under consideration is invoiced as "STAR PEDESTAL VASE ANTIQUE", "BOLO PEDESTAL VASE ANTIQUE", "OLAS PEDESTAL VASE ANTIQUE", "SCROLL PEDESTAL VASE ANTIQUE", and "CONE W/IRON BASE". Literature was provided describing the first four items as "glass blown into iron" 12" high and 8" square. According to the illustrations of the items in this literature, each item consists of a glass article in an iron frame, with either a square or cylinder-shaped body, flat base, and circular opening somewhat smaller than the diameter of the body of the article. The iron framework differs for each kind of "pedestal vase."

A sample of the "BOLO" pedestal vase was provided. The overall height (including glass and iron) is 12" and the base of the article is approximately 6" square. The glass component of the article is approximately 9 1/2" in height, with a base approximately 6" square, four sides approximately 6" high, and a neck which diminishes in diameter from the body of the article to an opening of approximately 4 1/2" in diameter.

No sample or description of the "CONE" item is provided. In the absence of any information or evidence to the contrary, we assume that this article is in the shape of a cone and is unable to stand on its own without the metal pedestal or stand (see, e.g., Headquarters ruling (HQ) 956810 dated November 28, 1994).

The merchandise was entered on October 21, 1995. The entry was liquidated on February 9, 1996, with classification of the merchandise under consideration in subheading MX7013.99.90, HTSUS (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 counsel filed this protest with Customs on April 12, 1996, against the classification of the merchandise. In regard to the "STAR", "BOLO", "OLAS", and "SCROLL" articles, the protestant states that they consist of "wrought iron forms into which glass has been blown, with the glass extending through the openings in the iron frames." The protestant states that although the articles are described on the invoice and sold by the importer as vases, another importer sells them as lanterns and they are in the traditional shape of lanterns used in the Southwestern United States.

Citing General Rule of Interpretation (GRI) 3(b), the protestant contends that because the iron frames dictate the shape of the articles and provide support for the glass, the glass "clearly plays a lesser role in the appearance of the overall article." The protestant states that the iron also provides "the rustic nature of the article, which is its major selling point." Therefore, the protestant contends that the articles should be classified as if they consisted of wrought iron, under subheading 7323.99.90, HTSUS, or, alternatively, 7326.90.85, HTSUS.

If the essential character of the caged articles is determined to be derived from the glass component, the protestant contends that, on the basis that Harmonized Commodity Description and Coding System Explanatory Note (EN) 70.13 provides that articles of glass combined with other materials are classified in heading 7013 only if the glass gives the whole the character of glass articles, classification in heading 7013 is precluded and should be under heading 7020.

As a third alternative, the protestant contends that no principal use of the articles has been established and, in the absence of a principal use, GRI 3(c), providing for classification under the heading which occurs last in numerical order among those which equally merit consideration, requires classification under heading 9405.

In regard to the "CONE" article, the protestant contends that this article "is a lighting article [and] is properly classifiable under subheading MX9405.50.40, [HTSUS]."

The subheadings under consideration are as follows:

7013.99.90 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 $3 each: ... Other: ... Valued over $5 each.

The 1995 general column one rate of duty for goods classifiable under this provision is 7.2% ad valorem; that for goods of Mexico qualifying for NAFTA treatment is 6.2% ad valorem.

7020.00.00 Other articles of glass.

The 1995 general column one rate of duty for goods classifiable under this provision is 6.3% ad valorem; goods of Mexico qualifying for NAFTA treatment are duty-free.

7323.99.90 Table, kitchen or other household articles and parts thereof, of iron or steel; ...: Other: ... Other: ... Not coated or plated with precious metal: ... Other.

The 1995 general column one rate of duty for goods classifiable under this provision is 3.4% ad valorem; goods of Mexico qualifying for NAFTA treatment are duty-free.

7326.90.85 Other articles of iron or steel: ... Other: ... Other: ... Other.

The 1995 general column one rate of duty for goods classifiable under this provision is 5.1% 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 1995 general column one rate of duty for goods classifiable under this provision is 7.3% ad valorem; goods of Mexico qualifying for NAFTA treatment are duty-free.

ISSUE:

Whether the glassware is classifiable as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.90, HTSUS, other articles of glass in subheading 7020.00.00, HTSUS, other table, kitchen or other household articles of iron or steel in subheading 7323.99.90, HTSUS, other articles of iron or steel in subheading 7326.90.85, HTSUS, or other non-electrical lamps and lighting fittings in subheading 9405.50.40, HTSUS.

LAW AND ANALYSIS:

Initially, we note that 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.

Under GRI 3(c), when goods cannot be classified by reference to GRI 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

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).

The "STAR", "BOLO", "OLAS", and "SCROLL" articles, consisting of wrought iron forms into which glass has been blown, with the glass extending through the openings in the iron frames, are composite goods (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 ..."). We have ruled glassware similar to the "CONE" article to be composite goods (see, e.g., HQs 956810 (referred to above) and 957794 dated October 2, 1995). Thus, under GRI 3(b), classification of the articles is determined on the basis of the component which imparts the essential character.

In Headquarters ruling (HQ) 960499 dated July 8, 1998, issued to you in regard to a protest by the same protestant, we considered the issue of essential character of articles similar to those under consideration, certain "caged glass" articles in which glass is blown into an iron framework. We concluded, on the basis of cited Court decisions, 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 the clearly the glass component. The same is true of the "STAR", "BOLO", "OLAS", and "SCROLL" articles, as well as the "CONE" article (assuming it to be cone-shaped glassware unable to stand on its own without the pedestal or stand (see also HQ 956810 (referred to above))). For the same reasons as in HQ 960499, the LAW AND ANALYSIS portion of which is incorporated by reference into this ruling, we conclude that the essential character of the articles is given by the glass component.

Accordingly, the articles must be classified as if they consisted of glass, and classification in subheading 7323.99.90 or 7326.90.85, HTSUS, is precluded. Because subheading 7020.00.00, HTSUS, is a so-called "basket" provision, 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. (See HQ 960499, referred to above, in this regard.)

Subheadings 7013.99.90 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 HQ 960499 (referred to above), we addressed the principal use issue 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. 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.

In HQ 960499 (see also HQ 960475 dated June 30, 1998, issued to you in regard to a protest by the same protestant), we applied the above criteria in determining the principal use of articles similar to the "STAR", "BOLO", "OLAS", and "SCROLL" "pedestal vase[s]". 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 bottle-like frame, sometimes called "caged glass") and its size. 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 "STAR", "BOLO", "OLAS", and "SCROLL" "pedestal vase" articles are made of relatively thick glass blown into an iron frame with dimensions 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 permits easy access; as for the appearance of the combination of iron framework and glass formed around that framework, advertising literature for similar larger items describes this appearance as providing "a fresh statement for bigger, bolder, longer stemmed blossoms" or "[a] dramatic flower presentation"; further we note that the articles are invoiced as "vase[s]". 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 articles for indoor decoration and not as candle holders.

In regard to the "CONE" article, based on the invoice value of the article we believe the opening of the glass portion of the article to be larger than 4 inches in diameter and its height or depth to be greater than 5 inches. Assuming this article to be cone-shaped glassware unable to stand on its own without the pedestal or stand and in the absence of information to the contrary, the evidence obtained from the public in response to the March 25, 1998, Customs Bulletin notice supports principal use of the article for indoor decoration and not as a candle holder. However, in regard to this item only, because we are not certain as to the physical details of the article the protestant is being given 30 days to provide evidence on the physical details of this article if it chooses to do so, subject to the conditions set forth in the HOLDING portion of this ruling.

The protestant contends that classification of the articles in heading 7013 is precluded by EN 70.13. This contention was addressed at considerable length in HQ 960499 (referred to above and incorporated by reference into this ruling). In HQ 960499, we rejected this contention because adoption of protestant's argument would require us to ignore the plain language of GRI 3(b) for heading 7013, on the basis of non-controlling legislative history, contrary to cited authorities. We noted the rule of statutory construction calling for the harmonization of different parts of a tariff act which appear to be inconflict, as well as statements in ENs 70.06 and 70.09 inconsistent with the protestant's argument. We concluded, in regard to this contention, that the glass in composite goods such as those under consideration "gives the whole the character of glass", as stated in EN 70.13, by virtue of application of GRI 3(b), so that classification in heading 7013 is not precluded by EN 70.13. We reach the same conclusion in this case.

Accordingly, the merchandise under consideration is classified as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.90, HTSUS.

HOLDINGS:

(1) The "STAR", "BOLO", "OLAS", and "SCROLL" articles are classified as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.90, HTSUS.

(2) The "CONE" article is classified as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99.90, HTSUS; except that, if within 30 days of the date of the written notification to the protestant described below, the protestant provides satisfactory evidence to establish that the "CONE" article is within the class or kind of goods principally used as candle holders, in accordance with the criteria provided in HQ 960499 (referred to above), the "CONE" article is classified as an other non-electrical lamp and lighting fitting in subheading 9405.50.40, HTSUS. Upon receipt of this ruling, please provide the protestant notification in writing that the protest will be denied as to the "CONE" article unless satisfactory evidence as to the article's form and size (including the diameter of the opening and the height or depth of the glassware) is provided to your office within 30 days of the date of such notification.

The protest is DENIED (except if the protestant timely provides satisfactory evidence to establish that the "CONE" item is within the class or kind of goods principally used as candle holders, the protest is GRANTED in part (as to the "CONE" article) and DENIED in part (as to the "STAR", "BOLO", "OLAS", and "SCROLL" articles)). 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