CLA-2 RR:TC:MM 959404 JRS
Port Director of Customs
P.O. Box 3130
819 Water Street, Bldg. No. 6
Laredo, TX 78044
RE: Protest Review Decision No. 2304-96-100073; "Sea Shell
Collection;" glassware; shaped glass decorative articles;
Heading 7013; HQ 958110; Heading 7018; glass smallwares; HQ
957456; HQ 952104 not applicable; HQ 958110 affirmed
Dear Port Director:
The following is our decision regarding Protest No. 2304-96-100073, which concerns the classification of shaped glass
decorative articles under the Harmonized Tariff Schedule of the
United States (HTSUS). The subject merchandise was entered on
August 29, 1995, and the entry was liquidated on March 22, 1996.
The protest was timely filed on April 8, 1996. Samples were
submitted for our examination at the October 28, 1996, meeting
with the protestant's counsel. In preparing our decision, we
have taken into consideration counsel's additional submission
dated November 1, 1996.
FACTS:
The articles are described on the commercial invoice as
"glass sea shells." The "Sea Shell Collection" consists of four
pieces of shaped decorative glass, three sea shells and one
starfish. Two glass sea shells measure 55mm long while the other
one is slightly smaller at 45mm, and the starfish measures 40-41mm in length. The four glass shapes range in weight from 1.2
to 2.3 ozs. There are three different style numbers that
designate three different colors (i.e., in this instance,
"crystal teal," "crystal green," and "crystal light blue"). The
sales brochure for this collection describes the merchandise as
follows: "[T]hese miniature treasures provide an endless array of
decorating possibilities when displayed in bowls, scattered on
tabletops, or simply used as paperweights. Available in natural
marine shades, soft pastels, or jewel tones. Approximately two
inches in diameter." On the reverse side of the importer's
promotional colored "picture postcard," these articles are
described as: "[e]ye catching and collectible, these miniature
treasures of the sea are ideal for aquarium and home decor.
Assorted styles in natural marine shades. Made of 100% glass."
Although protestant "do[es] not contest that the subject
glass shells ostensibly are described by the provisions of
subheading 7013.99.10, HTSUS," protestant, however, argues that
"because the glass shells also are described by the provisions of
subheading 7018.10.50, HTSUS, the articles are specifically
excluded from subheading 7013.99.10, HTSUS, by the explicit terms
of heading 7013, which provides that the heading covers only
glassware other than that of heading 7010 or 7018'."
The headings 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)
7018 Glass beads, imitation pearls, imitation precious or
semiprecious stones and similar glass smallwares and
articles thereof other than imitation jewelry; glass
eyes other than prosthetic articles; statuettes and
other ornaments of lamp-worked glass, other than
imitation jewelry; glass microspheres not exceeding 1
mm in diameter
ISSUE:
Whether the subject glass shapes are properly classifiable
under subheading 7018.10.50, as other similar glass smallwares,
or under subheading 7013.99.10, as glassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or 7018).
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ." Chapter 70 of the
HTSUS provides for glass and glassware.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System, and are generally indicative of the proper
interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989). EN 70.18, (page 1026) in
pertinent part, states that:
This heading covers a range of widely diversified glass
articles, most of which are used, directly or after
further processing, for ornamental and decorative
purposes.
These include:
(A) Glass beads (e.g., as used for necklaces, rosaries,
imitation flowers, ornaments for graves, etc.; for
decorating textile articles (trimmings, embroidery,
etc.), handbags or the like; or for use as electrical
insulators). These beads, whether or not coloured, are
in the form of small pierced balls, more or less round
in shape; they are obtained from tubes which are cut
into sections of approximately equal length and
diameter...
(B) Imitation pearls, hollow or solid, of all colours,
shapes and sizes, simulating real pearls. Hollow pearls
of the most usual type are obtained by blowing thin
glass spheres along a glass tube of very small diameter
and then separating them from each other. Due to the
manufacturing process, these pearls present two
directly opposite openings through which a string can
be run... .
(C) Imitation precious stones (including imitation
semi-precious stones)... These imitation stones are
made of special glass (e.g., strass) with a high
refractive index which may be colourless or coloured
directly with metallic oxides.
Imitation stones are generally obtained by cutting
fragments of the required size from a glass block;
these fragments are then arranged on a piece of sheet
metal covered with tripoli and placed in a small oven
in which their edges are rounded off. The stones can
then be cut (in the shape of diamonds, rose-cut
diamonds, etc.) or engraved (imitation cameos or
intaglios). These stones can also be obtained by direct
moulding (e.g., in the case of stones of a definite
shape for trinkets). The underside of such stones is
often covered with reflecting metallic paint
(gem-finish).
(D) Other glass smallwares such as imitation coral.
(E) Various glass articles (other than imitation
jewellery), obtained by assembling certain of the
individual articles mentioned above, such as flowers,
foliage and pearl ornaments for wreaths; fringes made
of beads or bugles and intended for lampshades,
shelves, etc.; blinds and portieres made of glass beads
or bugles, and table mats made similarly; rosaries made
of glass beads or imitation precious or semi-precious
stones.
* * * * * *
Flowers, foliage and fruit of cast or moulded glass,
for interior decoration and the like, are excluded
(heading 70.13). Fancy articles of lamp-worked glass
incorporating precious metal or metal clad with
precious metal other than as a minor trimming or
constituting imitation jewellery as defined for the
purposes of Chapter 71, fall in that Chapter.
In accordance with HQ 958110 (December 18, 1995), Customs
classified the instant glass sea shells under subheading
7013.99.10, HTSUS, the provision for "[g]lassware 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; glassware colored prior to solidification, and
characterized by random distribution of numerous bubbles, seeds
or stones, throughout the mass of the glass." The protestant
contends that the subject merchandise is materially
indistinguishable from the glass starfish covered by HQ 958110,
which was produced by Vacor de Mexico, the same manufacturer of
the articles under this protest. We note that the glass starfish
is identical to the one ruled on in HQ 958110.
Protestant's counsel argues that the subject merchandise is
properly classifiable as other similar glass smallwares under
subheading 7018.10.50, and therefore is specifically excluded
from heading 7013. Protestant states that heading 7018 was not
considered in HQ 958110 and therefore HQ 958110 must be
reconsidered.
Counsel contends that the shaped glass shells fall within
heading 7018, although it does not dispute that the text of
subheading 7013.99.10 does describe them. Counsel relies on the
EN that heading 70.18 "covers a range of widely diversified glass
articles, most of which are used, directly or after further
processing, for ornamental and decorative purposes." Based on
this wording, counsel argues that this includes a wide diversity
of shapes and sizes.
Initially, the question which must be addressed is whether
these articles fall within heading 7018 because articles
classifiable under heading 7018 are specifically exempted, by the
exclusionary language of the heading, from the provisions of
heading 7013. Accordingly, we must review the specific language
of the heading itself.
By applying the principle of ejusdem generis to the words
contained in the heading, the glass sea shells and starfish must
possess the particular characteristic which unites all the words
(exemplars) of the heading in order to be classified under the
heading embracing them. The U.S. 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, 641 F. Supp. 808, 10 CIT 154,
156 (1986). See HQ 089415, dated November 7, 1991. The CIT
further stated that "[a]s applicable to customs classification
cases, ejusdem generis requires that the imported merchandise
possess the essential characteristics or purposes that unite the
articles enumerated eo nomine in order to be classified under the
general terms." Id. at 157.
From the listing of specific items of glassware covered in
heading 7018, namely, "glass beads, imitation pearls, imitation
precious or semi-precious stones and similar glass smallwares,
and articles thereof other than imitation jewelry (underline
added)," we must ascertain the shared characteristics or purposes
which unite the specified exemplars and decide if the instant
glass sea shells and starfish possess those same characteristics.
Three characteristics which may be considered are size,
shape/form, and functionality.
Counsel argues that in HQ 957456, dated June 21, 1995,
Customs held that glass nuggets (flat marbles) and glass balls
(round marbles), the largest of which were identified therein as
55mm in diameter and approximately 7.9 ounces in weight, were
classifiable as "other similar glass smallwares" under subheading
7018.10.50, HTSUS. Counsel suggests that this proves that size
is not a bar from consideration under heading 7018. We agreed
that "smallwares" do not have a definite size limitation. In HQ
957456, Customs held that "all" glass marbles, round and flat,
principally used for decorative purposes in aquaria fell within
heading 7018. The rationale implicit in the ruling was that the
named exemplars of glass beads did not set a definitive size
limitation, except that they must be "small." While some of the
round marbles were on the large end (i.e., 55mm), the size of the
round marbles ranged from 14, 16, 22, 25, 35, 38, 42, to 55mm in
diameter, and the flat marbles ranged from 16, 18 or 38mm in
diameter, Customs found that all these items fell within the
named exemplar for glass beads because of its shape. The 55mm
glass ball is at the very margin of heading 7018 but fits within
that heading arguably due to its shape. In this protest, the
size of the "Sea Shell Collection" is small, but that factor
alone does not qualify them for classification as "similar glass
smallwares" under heading 7018. The glass articles under
consideration depict actual objects, namely, marine animals which
are a division of the animal kingdom (invertebrates) and, as
such, are distinguishable from HQ 957456, wherein the glass
marbles possess simple round and flat shapes.
As to the shape or form of the glass smallwares, all the
named exemplars of the first clause of heading 7018, possess a
basic round, oval, or irregular flat shape of stone. The shape
may be described as diversified, but the beads, pearls, stones,
and similar smallwares, in our opinion, do not possess any
distinctive shape because they reflect naturally occurring forms.
This was the case for the glass marbles and nuggets found to be
classifiable under subheading 7018.10.50 in HQ 957456. The glass
marbles were round and the nuggets were ovalish in shape,
possessing the form of a "squashed marble." Other articles
covered by heading 7018, i.e., glass microspheres and glass eyes,
are likewise not characterized by any definitive shape other than
being round. In contrast to the round and flat shapes of HQ
957456, the glass articles of this protest possess unique forms
and represent real objects (sea shells and starfish). Each of
the molded glass shapes (starfish, scallop, cockle shell, and
bonnet shell) under protest are examples of marine "animals."
See EN 70.13 (4) (page 1021), which specifically refers to
"animals" as an example of "fancy articles." The starfish and
shells are no less animal figurines intended for "indoor
decoration" by being displayed in the aquarium environment than
would be a glass frog or turtle.
Counsel finds it significant that subheading 7018.10.10
itself refers to "imitation pearls and imitation pearl beads of
all shapes and colors, . . ." to bolster his argument that any
shape is acceptable. However, the ENs describe the imitation
pearls as being "hollow or solid, of all colours, shapes and
sizes, simulating real pearls (emphasis ours)." It is logical
that if imitation pearls are to simulate real pearls, the type of
shapes would have to be more or less the shape that pearls are
found in nature, that is, somewhat round or oval.
Additionally, counsel finds significant that the ENs refer
to imitation stones that may be cut "in the shape of diamonds,
rose-cut diamonds, etc." or can be obtained by direct moulding
"(e.g., in the case of stones of a definite shape for trinkets)."
Additional U.S. Note 5 to Chapter 70 states that subheading
7018.10.20 applies to imitation precious or semi-precious stones
of "glass made into shapes suitable for use for jewelry or for
other ornamental purposes in a manner similar to natural
gemstones . . . " Imitation precious and semi-precious stones
are specifically provided for in subheading 7018.10.20. Thus,
this subheading encompasses many items of any shape made from
imitation precious or semi-precious stone, that is, various glass
articles which are made from cutting fragments of the required
size from a glass block of imitation stone. Figurines and other
items depicting actual objects (except for lampworked glass and
imitation precious or semi-precious stones) are classified in
subheading 7013.99, regardless of size.
In the ENs, the example of imitation coral is given for
other glass smallware. It is our understanding that imitation
coral may be manufactured by means of lampworking (i.e.,
softening glass rods over a flame from a lamp), which would make
it classifiable under heading 7018. Lampworked glass articles
with distinct shapes are specifically mentioned in heading 7018;
however, they are classified in subheading 7018.90.50, rather
than in subheading 7018.10.50, based on the unique method of
manufacture, and not simply because they are small items. The
glass articles covered by this protest are not produced by means
of lampworking. Unless a product is made of lampworked glass,
such as in HQ 950837, items with distinct shapes (figurines,
etc.) are classified in heading 7013, not 7018, even if the
articles are very small. Customs is of the opinion that items
with distinct forms representing real objects (marine animals) do
not share the characteristics of the specific exemplars in the
first clause of heading 7018.
Lastly, we must determine whether the glass sea shells and
starfish share the same purpose which unites the specific
exemplars of heading 7018. The obvious characteristic is
decoration or ornamentation. What unites many of the specific
heading 7018 exemplars of beads, pearls, and stones is that they
act in concert with other items of the same class to accomplish
their decorative purpose. They cannot function alone or
independently to provide decoration or ornamentation. For
example, as is provided in the ENs, at 70.18(A), glass beads are
the type "as used for necklaces, rosaries, imitation flowers,
ornaments for graves, for decorating textile articles (trimmings,
embroidery), handbags or the like, or for use as electrical
insulators." By itself, one glass bead, one imitation pearl or
one imitation semi-precious stone may not be considered
"decorative" or "ornamental" whereas one starfish or one sea
shell may.
Moreover, in EN 70.18(E), the various glass articles (other
than imitation jewellery) are obtained by assembling certain of
the individual articles mentioned above (i.e., the glass beads,
imitation pearls, imitation precious or semi-precious stones)
such as "flowers, foliage and pearl ornaments for wreaths;
fringes made of beads or bugles and intended for lampshades,
shelves, etc.; blinds and portiers made of glass beads or bugles,
and table mats made similarly; rosaries made of glass beads or
imitation precious or semi-precious stones." Unlike the class of
articles of glass beads, imitation pearls or imitation stones,
the protested glass articles are not functionally dependent on
other like articles to make them decorative because they are
decorative and ornamental in their own right. These glass sea
shells and starfish, as described in the protestant's sales
literature can be simply used individually as paperweights. The
mere "grouping" or placement of the glass starfish and sea shells
together on the bottom of an aquarium, for example, is not an
assembly, and the "grouping" does not make these articles
decorative at that point because they are already decorative
articles by themselves, unlike a handful of glass beads.
Granted, the glass sea shells' and starfish's decorativeness is
enhanced when they are physically grouped near each other, but
each article does not require proximity with other articles of
the same class to provide decoration or ornamentation. We do not
find these shaped decorative glass articles to be "similar glass
smallwares" to either glass beads, imitation pearls, or imitation
precious or semi-precious stones in heading 7018.
The 7018 heading's exemplars do not encompass the instant
glass articles, even if intended for use in "indoor decoration,"
because the decorative glass sea shells and starfish are not
"similar glass smallware" of the kind falling within the
provisions of heading 7018. By the application of ejusdem
generis, the language of the heading 7018 itself precludes
classification of the glass sea shells in that heading.
Counsel cites ruling HQ 952104, dated July 13, 1993, in
support of his position that these articles are regarded as glass
smallwares. The merchandise covered by HQ 952104 consisted of
glass drops, hearts and stars, with holes, designed to be worn
with jewelry or on apparel. These products were held to be
imitation precious or semi-precous stones classifiable under
subheading 7018.10.20, which permits stones of any shape to be
classified thereunder. The instant solid glass articles are
distinguishable from the merchandise in HQ 952104 because they
are decorative sea shells and starfish which do not contain any
drilled holes as they are not designed to be worn with jewelry,
but to be placed in aquaria, displayed in bowls, scattered on
tabletops, or simply used as paperweights. Also, the decorative
glass sea shells and starfish are not imitation precious or semi-precious stones so HQ 952104 is an irrelevant comparison to the
protested merchandise.
Counsel's additional submission included a 1987 Customs
Cooperation Council decision on glass smallwares (CCC Doc. No.
34.391 at Annex E//4). While it is noted that the U.S. was not a
member of the HTS until January 1, 1989, the merchandise at issue
in that decision is distinctly different from the instant
protested merchandise. Except for the small round facetted bead-like balls (5mm to 14mm in diameter) which had holes drilled
through the center, the various shaped and sized crystal items
(i.e., prisms (38 x 14mm), oval-shaped pendants (50 x 29mm), and
octagons (14 - 60mm)) contained drilled holes on their upper
edges. We find that this CCC decision is irrelevant to the
protested merchandise because it dealt with different merchandise
which is specifically provided for under 7018.10.20, and has no
precedence in this case.
Counsel also referenced the November 5, 1987, Customs
Cooperation Council (composed of the Nomenclature Committee and
the Interim Harmonized System Committee) decision on the
classification of faceted-glass products made in various shapes
from crystal glass raised by the Customs Administration of
Thailand in 1986 (CCC Doc. No. 33.966, March 31, 1987). The CCC
held that these articles were classified as glass smallwares
under HS 70.18. These articles fell into two categories. The
first category consisted of small round facetted balls with a
diameter varying from 5mm to 14mm, with a hole passing through
the center through which a string could be run. The second
category consisted of solid glass-facetted articles in various
shapes such as prisms, oval-shaped pendants, balls and octagons.
These were pierced near one end or, in one case (a crystal star
which measured 140 x 70 mm) at both ends, but not through the
center. Again, the merchandise is distinctly different from the
solid glass merchandise under consideration.
The ENs for heading 7018 contain an exclusion for
"[f]lowers, foliage and fruit of cast or moulded glass, for
interior decoration and the like (heading 70.13)." We believe
this exclusion precludes classification of the instant glass
articles in heading 7018. We do not find these shaped decorative
glass articles to be "similar glass smallwares" with either the
glass beads, imitation pearls, or imitation precious or semi-precious stones of heading 7018. On the other hand, heading 7013
covers "[g]lassware of a kind used for . . . indoor decoration or
similar purposes (other than that of heading 7010 or 7018)." The
glass sea shells and starfish are akin to these distinct
decorative glass articles of colored bubble glass which are
classifiable under heading 7013. As stated in HQ 958110, the
glass articles are obtained by casting the glass in individual
molds. Such articles are expressly covered under heading 7013.
EN 70.13 (page 1021) provides, in pertinent part:
This heading covers the following types of articles,
most of which are obtained by pressing or blowing in
moulds:
(1) Table or kitchen glassware . . .
(2) Toilet articles . . .
(3) Office glassware, such as paperweights . . .
(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. (Emphasis ours.)
The ENs for heading 7013 contain an exclusion for
"[a]rticles of heading 70.18 of a kind suitable for interior
decoration (e.g., imitation flowers and foliage of glass beads
and ornaments of lamp-worked glass)." We do not believe that
this exclusion precludes classification of the instant glass
articles because these articles are specifically described in
heading 7013.
The provision for other glassware of colored bubble glass
under subheading 7013.99.10 describes the merchandise unlike the
terms of heading 7018. Accordingly, our classification of the
glass starfish of HQ 958110 under subheading 7013.99.10, as
colored bubble glass is affirmed.
HOLDING:
The various glass sea shells and starfish of the "Sea Shell
Collection" are properly classifiable as colored bubble glass
under subheading 7013.99.10, HTSUS, because they are specifically
described by the provisions of heading 7013, and because they do
not fall within the terms of heading 7018. HQ 958110 is
affirmed.
The protest should 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. The
Office of Regulations and Rulings will take steps to make this
decision available to Customs personnel via the Customs Rulings
Module in ACS and to the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels within the 60 days from the date of this decision.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division