CLA-2 CO:R:C:M 956967 MMC
District Director
U.S. Customs Service
Commercial Operations Division
4477 Woodson Road
Room 200
St. Louis, MO 63134
RE: Protest 4503-94-100007; decorative crystal baskets; 7013.31,
7013.91; glassware of a kind used for table and kitchen
purposes; EN 70.13; HRL 955057
Dear District Director:
The following is our response to Protest 4503-94-10007
concerning your action in classifying and assessing duty on
decorative crystal baskets under the Harmonized Tariff Schedule
of the United States (HTSUS).
FACTS:
The subject articles are faceted glass baskets. Customs
Laboratory Report 3-94-30374-001 dated December 30, 1993,
determined that a sample of the articles was lead crystal and had
a lead monoxide content of greater than 24%. The interior of the
baskets measure 6" long and 4" wide. Their handles measure 1
1/4" at the widest point.
The baskets are imported empty. After importation, they are
sold to florists who create various floral arrangements in them
and then sell them to an ultimate purchaser. It appears from the
promotional literature submitted by counsel for the importer,
that the baskets may be reused after their initial conveyance and
display of flowers.
The merchandise was entered under subheading 7013.31.30, as
glassware of a kind used for table/kitchen purposes. However,
the entries were liquidated on December 27, 1993, and January 3,
and 7, 1994, under subheading 7013.91.30, as other glass
decorative articles. The protest was timely filed on March 23,
1994.
ISSUE:
Are the crystal baskets classifiable as glassware of a kind
for indoor decoration or as glassware of a kind used as table or
kitchenware?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1, HTSUS, 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. Chapter 70, HTSUS,
provides for glass and glassware.
Heading 7013, HTSUS, provides, in pertinent part, for
glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes.
The subheadings under consideration are:
7013.31 Glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes (other
than that of heading 7010 or 7018): Glassware of a kind
used for table (other than drinking glasses) or kitchen
purposes other than that of glass-ceramics: of lead
crystal
7013.91 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: Of
lead crystal
GRI 6, HTSUS, provides that for legal purposes, the
classificaiton of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to the above
rules, on the understanding that only subheadings at the same
level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherewise requires.
Protestant has argued that the baskets are described by
subheading 7013.31, HTSUS, as glassware for table or kitchen
purposes. We disagree.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be consulted. The ENs, although not dispositive nor legally
binding, 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. 89-80, 54 Fed. Reg. 35127, 35128,
(August 23, 1989).
EN 70.13, p. 936, states, in pertinent part, that all
glassware of this heading:
...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...
This heading covers the following types of articles,
most of which are obtained by pressing or blowing in
moulds:
(1) Table or kitchen glassware, e.g. drinking glasses,
goblets, tankards, decanters, infants' feeding bottles,
pitchers, jugs, plates, salad bowls, sugar-bowls,
sauce-boats, fruit-stands, cake-stands, hors-d'oeuvres
dishes, bowls, basins, egg-cups, butter dishes, oil or
vinegar cruets, dishes (for serving, cooking, etc.),
stew-pans, casseroles, trays, salt cellars, sugar
sifters, knife-rests, mixers, table hand bells,
coffee-pots and coffee-filters, sweetmeat boxes,
graduated kitchenware, plate warmers, table mats,
certain parts of domestic churns, cups for
coffee-mills, cheese dishes, lemon squeezers,
ice-buckets...
Customs is of the opinion that the subject baskets are not
ejusdem generis with the articles enumerated under section (1).
Under the rule of ejusdem generis, which means "of the
same kind", where an enumeration of specific things is
followed by a general word or phrase, the general word
or phrase is held to refer to things of the same kind
as those specified. Nissho-Iwai American Corp. U.S. 10
CIT 154, 156 (1986). See: Totes, Inc. v. U.S., No. 94-154 CIT 91-06-00423, (September 30, 1994).
EN 70.13 contains the general phrase "e.g." which is an
abbreviation for the Latin phrase which translates to "for
example". This general phrase indicates that the term "table or
kitchen glassware" is not limited to the specific examples
enumerated in the note and that the principle of ejusdem generis
applies. Because ejusdem generis applies, the essential
characteristic of all the enumerated articles, and whether the
crystal baskets have that essential characteristic must be
determined.
Customs finds that the essential characteristic of the
articles enumerated in the EN is the storing or serving of food.
All of the enumerated articles either aid in the serving or
storing of food. We note that this understanding of table and
kitchenware's essential characteristic is consistent with prior
rulings. See: Headquarters Ruling Letter (HRL) 955057 dated
October 17, 1994, which demonstrated that this understanding of
the term "kitchenware" was consistent with prior tariff treatment
which provided for articles chiefly used for preparing, serving,
or storing food or beverages, or food or beverage ingredients.
Customs is of the opinion that the storing and serving of
food is not the essential characteristic of the crystal baskets.
This belief is evidenced by the physical characteristics of the
article. It is shaped like a basket instead of a bowl.
Additionally, were it intended to truly function as a basket it
would be made of a more durable material. Moreover, the handle
portion prevents the basket from being principally used to serve
or store food; as the presence of the handle makes adding or
taking food from the dish awkward. Because the crystal baskets
are not ejusdem generis with the enumerated articles of section
(1), we must review other sections of EN 70.13 to determine if
the baskets are described elsewhere in the note.
Section (4)of EN 70.13 provides, in pertinent part, for
objects principally used as decorative articles:
(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.
All of the articles enumerated in section (4) have as their
essential characteristic their own display for indoor decoration,
or the "holding" of something for its display as indoor
decoration. Statuettes are an example of the former, vases or
ornamental fruit bowls are of the latter. Customs is of the
opinion that the crystal baskets' essential characteristic is
that of holding something for display.
This finding is based on the fact that the baskets are
initially imported to hold a decorative floral arrangement.
Additionally, the literature submitted indicate that the article
is marketed as reusable for holding decorative articles.
Moreover, the physical characteristics of the article indicate it
is principally used to hold decorative articles for display. The
handle makes use for the holding various articles for anything
but display extremely awkward. Additionally, were it truly
intended to be used for holding purposes of a basket, it would
have been made of a more durable material. These physical
characteristics clearly indicate that the article is intended to
be principally used for display of other articles for indoor
decoration.
HOLDING:
The protest should be DENIED. The crystal baskets are
classifiable under subheading 7013.91., HTSUS, as 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: Of lead crystal. Classification to the eight
digit level will vary according to the value of the article.
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 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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division