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HQ 959404




July 21, 1997

CLA-2 RR:TC:MM 959404 JRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.10

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

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