HQ 960503

July 9, 1998

CLA-2 RR:CR:GC 960503 PH

CATEGORY: Classification

TARIFF NO.: 7013.99.90; 9405.50.40

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