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