HQ 956048

July 7, 1994

CLA-2 CO:R:C:M 956048 KCC

CATEGORY: Classification

TARIFF NO.: 7013.99.90

District Director

U.S. Customs Service

9400 Viscount, Suite 104

El Paso, Texas

RE: Protest 2402-93-100183; metal iron Pedestal with glass

vessel; timely protest; 19 U.S.C. 1514(c)(2); 19 CFR

174.12(e); 90 days; GRI 3(b); essential character; General

EN Rule 3(b)(IX); composite good; 7020; other articles of

glass; 7326; other articles of iron or steel; 9403; General

EN (A) to Chapter 94; furniture; Sprouse Reitz & Co.;

Furniture Import Corp.; 9405; lamps and lighting fittings,

not elsewhere specified or included

Dear District Director:

This is in response to Protest 2402-93-100183, which

pertains to the tariff classification of metal iron pedestals

with glass vessel under the Harmonized Tariff Schedule of the

United States (HTSUS). A videotape was submitted by the

protestant for our examination.

FACTS:

The article under consideration is a metal iron pedestal

with a glass vessel. The submitted videotape references model

number P-3001. However, submitted literature also references

model numbers P-3003 and P-3001/A. The models appear to only

differ in size and styling. They all have the common

characteristics of a metal iron pedestal which holds a glass

vessel.

The protestant states that the metal iron pedestals with

glass vessels are marketed as spirit lamps and votive candle

burners, as the basic design is derived from similar articles

used in the late 16th and 17th century by monasteries and

churches for illumination. However, the protestant also states

that this article is a \"household decorative accessory whose use

is limited solely by the imagination of the user.\"

Upon importation, the numerous entries of the metal iron

pedestal with glass vessel were liquidated starting on July 16,

1993, through March 4, 1994, under subheading 7013.99.90, HTSUS,

as other glassware, valued over \$5 each. This classification was

based on the opinion that the metal iron pedestal with glass

vessel was a composite good with the glass vessel imparting the

essential character.

In a protest filed on December 15, 1993, the protestant

states that the metal iron pedestal with glass vessel is a set

with the metal iron pedestal imparting the essential character.

Therefore, the protestant contends that it is properly classified

under subheading 7326.90.90, HTSUS, as other articles of iron or

steel. Alternatively, the protestant states that if the

essential character is determined to be the glass vessel, the

metal iron pedestal with glass vessel is properly classified

under subheading 7020.00.00, HTSUS, as other articles of glass.

The competing headings are as follows:

7013 Glassware of a kind used for table, kitchen, toilet,

office, indoor decoration or similar purposes (other

than that of heading 7010 or 7018)\....

7020 Other articles of glass.

7326 Other articles of iron or steel\....

9403 Other furniture and parts thereof\....

9405 Lamps and lighting fittings including searchlights and

spotlights and parts thereof, not elsewhere specified

or included; illuminated signs, illuminated nameplates

and the like, having a permanently fixed light source,

and parts thereof not elsewhere specified or

included\....

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\. What is the tariff classification of the metal iron pedestal

with glass vessel under the HTSUS?

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

following entries were not timely protested within 90 days from

the date of notice of liquidation.

ENTRY LIQUIDATED

328-00763131 September 10, 1993

328-00757950 September 10, 1993

328-00751516 September 10, 1993

328-00779863 September 3, 1993

328-00748231 September 3, 1993

328-00745369 August 27, 1993

328-00745542 August 20, 1993

328-00737820 August 13, 1993

328-00737440 August 6, 1993

328-00737093 July 30, 1993

328-00730429 July 23, 1993

328-00730247 July 16, 1993

The above entries were not protested until December 15,

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 above entries is not

timely filed, it must be denied.

Moreover, the protestant has failed to meet the statutory

requirement for timely filing a protest for the following

entries:

ENTRY LIQUIDATED

328-00848031 3-04-94

328-00846746 2-25-94

328-00846555 2-18-94

328-00846415 2-18-94

328-00831615 2-11-94

328-00831359 2-04-94

328-00831227 2-04-94

328-00779244 1-28-94

328-00779178 1-28-94

328-00795729 1-21-94

328-00795489 1-14-94

328-00795109 1-07-94

328-00794961 1-07-94

328-00784004 1-03-94

328-00783493 1-07-94.

As previously stated, this protest was filed on December 15,

1993, well before the above listed entries were liquidated.

Therefore, pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e),

this protest for the above listed entries is not timely filed and

must be denied.

II\. 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\....\"

When, by application of GRI 2, HTSUS, 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.

Explanatory Note (EN) Rule 3(b)(IX) of the Harmonized

Commodity Description and Coding System (HCDCS) states that:

For the purposes of this Rule, 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 but also those with separable

components, provided these components are adapted one to the

other and are mutually complementary and that together they

form a whole which would not normally be offered for sale in

separate parts (emphasis in original).

The ENs although not dispositive, are to be looked to for the

proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed.

Reg. 35127, 35128 (Aug. 23, 1989).

In this case, we are of the opinion that the metal iron

pedestal with glass vessel is not a set, but is a composite good.

The components of the article, the metal iron pedestal and glass

vessel, are adapted one to the other, mutually complementary, and

together form a whole which would not normally be offered for

sale in separate parts. Therefore, we need to determine which

component imparts the essential character.

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 addition, EN Rule 3(b) (pg. 4),

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.

Based on the information submitted, we are of the opinion

that the essential character of the metal iron pedestal with

glass vessel is the glass vessel. The glass vessel is the

component with distinguishes the article. It is the more

attractive component which appeals to the consumer. The glass is

the component which fulfills the function of the article; it

holds the object to be displayed such as, flowers, plants, wine

bottles, candles, etc. The metal iron pedestal merely supports

the glass vessel. Therefore, the glass vessel imparts the

essential character to the metal iron pedestal with glass vessel.

The glass vessel is classified under heading 7013, HTSUS.

EN 70.13 (pgs. 936-936a), states that heading 7013, HTSUS,

covers:

Glassware for indoor decoration and other glassware

(including that for churches and the like), such as vases,

ornamental fruit bowls, statuettes, fancy articles (animals,

flowers, foliage, fruit etc.) table centres (other than

those of heading 70.09), aquaria, incense burners, etc., and

souvenirs bearing views (emphasis in original).

The glass vessel is ornamental glassware similar to a vase,

although as the protestant has stated, it can not stand by

itself. Even though the glass vessel can be used for both indoor

and outside decoration, it is of the class or kind of article

classifiable under heading 7013, HTSUS. Inasmuch as the

essential character is imparted by the glass vessel, the entire

composite good (metal iron pedestal with glass vessel) is,

therefore, classified under the tariff classification of the

glass vessel. As the value of the metal iron pedestal with glass

vessel is over \$5 each, it is classified under subheading

7013.99.90, HTSUS, as other glassware, valued over \$5 each.

Alternatively, the protestant contends that the glass vessel

is classified as other articles of glassware under heading 7020,

HTSUS. EN 70.20 (pg. 945) states that:

This heading covers glass articles (including glass parts

of articles) not covered by other headings of this Chapter

or of other Chapters of the Nomenclature (emphasis in

original).

As stated previously, the glass vessel is properly

classified under subheading 7013.99.90, HTSUS. Therefore,

pursuant to EN 70.20, it is not classified under heading 7020,

HTSUS, as other articles of glass.

It has been suggested that the metal pedestal with glass

vessel may be classifiable under heading 9403, HTSUS, as other

furniture and parts thereof. General EN (A) to Chapter 94 (pg.

1574), defines furniture as:

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 dwelling,

hotels, theatres, cinemas, offices\....Similar articles

(seats, chairs etc.) for use in gardens, squares,

promenades, etc. are also included in this category

(emphasis in original).

The metal iron pedestal with glass vessel is a movable

article which is constructed for placing on the floor or ground.

However, we are of the opinion that the article is not mainly

used for a utilitarian purpose. In determining whether certain

articles are classifiable as furniture, there is a clear

distinction between an article of utility and those used

primarily for ornamentation. See, Sprouse Reitz & Co., v. United

States, 67 Cust. Ct. 209, C.D. 4276 (1971), and Furniture Import

Corp., v. United States, 56 Cust. Ct. 125, C.D. 2619 (1966).

As stated by the protestant, the metal iron pedestal with

glass vessel is a subsidiary article designed for ornamentation.

It is not an article designed for a utilitarian purpose.

Moreover, the protestant has described this article as a

\"household decorative accessory.\" Therefore, the metal pedestal

with glass vessel is not classified as furniture under heading

9403, HTSUS.

Additionally, it has been suggested that the metal iron

pedestal with glass vessel is classifiable under heading 9405,

HTSUS, as lamps and lighting fittings, not elsewhere specified or

included. We are of the opinion, that classification under

heading 9405, HTSUS, in inappropriate. Protestant has stated

that this article is a \"household decorative accessory whose use

is limited solely by the imagination of the user.\" The metal

iron pedestal with glass vessel does not belong to the class or

kind of lamps and lighting fittings classifiable under subheading

9405, HTSUS. Even though it is marketed as a spirit lamp and

votive candle burner with its basic design derived from similar

articles used in the late 16th and 17th century by monasteries

and churches for illumination, it can be used for any purposes

that the buyer desires. It is a decorative article which is not

classifiable under heading 9405, HTSUS.

HOLDING:

Pursuant to 19 U.S.C. 1514(c)(2) and 19 CFR 174.12(e), this

protest for entries 328-00763131, 328-00757950, 328-00751516,

328-00779863, 328-00748231, 328-00745369, 328-00745542, 328-00737820,
328-00737440, 328-00737093, 328-00730429 and 328-00730247, 328-00848031,
328-00846746, 328-00846555, 328-00846415,

328-00831615, 328-00831359, 328-00831227, 328-00779244, 328-00779178,
328-00795729, 328-00795489, 328-00795109, 328-00794961,

328-00784004 and 328-00783493 is not timely filed.

The metal iron pedestal with glass vessel is a composite

good with the essential character imparted by the glass vessel.

Therefore, it is classified under subheading 7013.99.90, HTSUS,

as other glassware, valued over \$5 each.

The protest is 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, Lexis, Freedom of Information Act, and

other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division