CLA-2 RR:CR:GC 964629 AML
Ms. Lisa Chastain
Fritz Companies, Inc.
3930 W. 29th Street S Ste #5
Wichita, KS 67217
RE: Decorative glass garden ornament; NY D81179 reconsidered
Dear Ms. Chastain:
This is in reference to New York Ruling Letter (NY) D81179, issued to you on behalf of Decorator and Craft on August 18, 1998, which classified a decorative glass garden ornament under subheading 7020.00.60 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for other articles of glass: other. We have reconsidered NY D81179 and now believe that the classification set forth is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on February 28, 2001, in Vol. 35, No. 9 of the Customs Bulletin, proposing to revoke NY D81179 and to revoke the treatment pertaining to the decorative glass garden ornament. As explained in a notice published on February 21, 2001, in Vol. 35, No. 8 of the Customs Bulletin, the period within which to submit comments on this proposal was extended to March 23, 2001. No comments were received in response to these notices.
FACTS:
The article was described in NY D81179 as follows:
The subject article, which is identified as "gazing ball", is a ten inch hollow glass ball with an extending open neck. The item has a reflective (mirror-like) appearance and will be used as an outdoor lawn decoration. You indicated in your letter that this item can not stand on its own. You further stated that this product will be marketed in the United States with a twenty four to thirty six inch high pedestal base.
NY D81179 classified the glass "gazing ball" under subheading 7020.00.60, HTSUS, which provides for other articles of glass: other.
ISSUE:
Whether the decorative glass garden ornaments are classifiable under subheading 7013.99.00, HTSUS, which provides for 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; or under subheading 7020.00.60, HTSUS, which provides for other articles of glass: other?
LAW and ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]”
The HTSUS headings and subheadings under consideration 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):
Other glassware (con.):
7013.99 Other.
* * *
7020.00 Other articles of glass:
7020.00.60 Other.
There is no question that the articles are classifiable in Chapter 70, HTSUS, which provides for articles of glass (we note that in Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the Court stated that "all articles of glass are generally defined as ‘glassware’." (63 Cust. Ct. at 250; citing Webster’s Third New International Dictionary (1968); see also Webster’s New World Dictionary, Third College Edition, at 573 (1988), defining "glassware" as "articles made of glass"). To be determined is which subheading within Chapter 70 best provides for the articles.
Subheading 7020.00.60, HTSUS, is a so-called "basket" provision within Chapter 70, in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988)). Therefore, we are first addressing the other competing provisions within Chapter 70. Only if classification in those provisions is precluded will we address classification in heading 7020, HTSUS.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the
scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The “gazing balls,” products of the blow mold process, have no functional use other than as a decoration for a lawn or garden. That is, the articles fulfill their function simply because they are in esse: by being. All of the articles bear a “neck” that we assume is a product of the blow molding process and which you allege facilitates the articles to “connect” to or be otherwise placed on a stand or stake. (We note that the
neck could also be utilized to place or embed the articles in the ground or a garden.) Although one could prefer that the gazing ball be displayed from a stake or stand, it is
reasonable to assume that one could place (arrange or embed) the article on the ground in a garden to achieve a similar, decorative effect.) Were the articles imported with a stand, the glass ornament would impart the essential character to the importation. See Headquarters Ruling Letters (HQs) 957367, dated March 5, 1995; 957413 dated March 31, 1995 and 953384, dated September 14, 1993, and rulings concerning similar articles cited therein.
Heading 7013, HTSUS, provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) [emphasis added].” The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). The ENs to heading 7013, HTSUS, provide, in pertinent part, that:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
* * *
(4) 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.
These articles may be e.g., of ordinary glass, lead crystal, glass having a low
coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles).
* * *
Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole the character of glass articles.
We believe in this instance that the “gazing balls,” decorative glass articles for outdoor use as decorations, are sufficiently similar to the articles enumerated in heading 7013 (such as . . . statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), to warrant classification as such under heading 7013, HTSUS. That is, we find that the decorative glass articles for outdoor use are ejusdem generis with the decorative glass articles for indoor use described in the heading and EN to heading 7013, HTSUS.
The gazing ball is distinguishable from the articles classified in HQs 957367,
957413 and 953384. In those rulings, bell shaped glassware (which after importation would be sold with a stand), a floor standing glass vase with a metal stand, and, among other things, yards of ale in various sizes (which also following importation would be sold with stands), respectively, were classified in heading 7020, HTSUS. The rationale behind these rulings is that that glass articles were either parts of composite decorative, utilitarian goods or parts thereof, and because heading 7013 does not contain a parts provision, the articles fell to be classified in heading 7020. (See also Riekes Crisa Corp v. United States, 14 CIT 235, 245 (1990), in which the Court observed that “under well established principles of customs law, ‘a tariff provision which does not specifically provide for parts does not include them.’” (citing Glass Prods. v. United States, 10 CIT 253, 255, 641 F. Supp. 813, 814 (1986).) The decorative glass ornaments for outdoor use, on the other hand, are capable, depending on the preference of the consumer, of being displayed upon importation.
An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In their condition as imported, the decorative glass articles for display in gardens are substantially complete. That is, the articles do not
require further working to fulfill their “function;” one needs only to decide how to display the articles, be it on a stake, stand or the ground.
GRI 2(a) provides, in pertinent part, that:
2(a) Any reference in a heading to an article shall be taken to include a
reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.
We find that, in their condition as imported, and in accordance with GRI 2(a), the articles have the essential character of decorative glass articles for outdoor use. Any stand (which is not imported contemporaneously) for the articles becomes ancillary; the stand facilitates the display of the articles.
The determination that decorative glass articles for outdoor use are classifiable
under subheading 7013, HTSUS, comports with prior rulings of this office. In New York Ruling Letter (NY) 086166, dated April 9, 1990; in Headquarters Ruling Letters (HQ)
961004, dated May 5, 1999; and HQ 962066, dated September 22, 1998, “suncatchers” were classified under subheading 7013.99, HTSUS.
HOLDING:
At GRI 2(a), the decorative glass garden ornaments are classifiable in subheading 7013.99.00, HTSUS, which provides for other articles of glass, other. The classification of these articles at the eight-digit level will be determined by the value of the respective article.
EFFECT ON OTHER RULINGS:
NY D81179 is hereby REVOKED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division