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HQ 956967




December 20, 1994

CLA-2 CO:R:C:M 956967 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.91

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

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