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HQ 966266




October 31, 2003

CLA-2 RR:CR:GC 966266 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Port Director of Customs
4735 Oakland St.
Denver, CO 80239

RE: Protest 3307-03-100003; octagonal glass bottle

Dear Port Director:

This is our decision on Protest 3307-03-100003, filed by a customs broker on behalf of Perky Pet Products, Inc., against your classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of octagonal glass bottles (part number 702/701, otherwise known as “gemstone” bottles). A sample and descriptive literature were provided for our consideration.

FACTS:

The article under consideration is an octagonal glass bottle, described by the protestant, in pertinent part, as follows:

The bottle in question is part of a bird feeder that is imported separately from any other article and will be assembled into a completed bird feeder following importation.

The article appears to be molded from ordinary, clear glass. It is approximately seven inches tall. Its circular base is approximately three inches in diameter, and the diameter width increases to approximately five inches at its greatest width; molded facets on the circumference at this widest point are octagonal in shape. The article tapers in diameter and bears molded facets that are approximately four inches in length. The article has a threaded opening that is approximately one inch in height and approximately 3/4 of an inch in diameter. Although it is not explicitly stated, we assume that, during assembly of the bird feeder (which follows importation) the article is inverted (threaded aperture down) into the bird feeder; in this configuration the bottle has the gemstone appearance.

The protestant, in its attachment to the Customs Form (“CF”) 19, contends (“the bottle in question is imported separately from the other components and is received into inventory to be assembled into the bird feeders at a later date . . . the bottle in question is not sold separately except as a replacement part . . . the bottle in question does not by itself have the essential character of a bird feeder.”) that the article is a part of a bird feeder and, because heading 7013, HTSUS, does not provide for parts made of glass, that the articles are classifiable under heading 7020, HTSUS, which provides for other articles of glass: other. In furtherance of this argument, the protestant relies upon Riekes Crisa Corp v. United States, 14 CIT 235, 245 (1990), in which the Court of International Trade (“CIT”) 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 protestant further contends that the articles cannot be classified under heading 7013, HTSUS, because the bird feeders, when complete, are intended for use outside of the home, and heading 7013, HTSUS, provides for, among other things, glassware for indoor decoration and similar items.

The articles were entered on August 27, 2002, and the entries were liquidated on November 22, 2002, with classification under subheading 7013.99.50, 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: other: other: valued over $0.30 but not over $3 each. The protest was filed on February 18, 2003.

ISSUE:

Whether the decorative glass bottle is classifiable under subheading 7013.99.50, 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:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

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):
Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics:
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each.

7020.00 Other articles of glass:
7020.00.60 Other.

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 competing provisions within Chapter 70. Only if classification under heading 7013 is precluded will we address classification in heading 7020, HTSUS.

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). The article at issue is an empty glass bottle of unique shape. While the use of the article is considered in the analysis (see below), the size, characteristics and appearance of the article are also considered in determining its classification.

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 article in question, upon importation, is intended to be decorative, given its unique shape and the molded facets that give it the desired “gemstone” appearance (see above). In consideration of its size, characteristics and appearance, the article is prima facie classifiable as a decorative glass article under heading 7013, HTSUS.

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 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.” NisshoIwai American Corp. v. United States (“Nissho”), 10 CIT 154, 156 (1986). The CIT further stated in Nissho 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.” Nissho, p. 157. Reasonable paraphrasing of the goods enumerated in the superior heading 7013 (of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes) is to describe those articles as household articles. We believe that the phrase “indoor decoration or similar purposes” can also be reasonably interpreted to include decoration outside the home. “The general word or phrase is held to refer to things of the same kind as those specified.” Sports Graphics, Inc. v. United States, 24 Fed. 3d 1390, 1392 (Fed. Cir. 1994). Thus, while glassware for outdoor use is not specifically enumerated within heading 7013, we conclude that the articles at issue are virtually identical to the innumerable decorative glass bottles previously classified by Customs under heading 7013, and their similarity in form and function to the glass articles enumerated justifies classification therein. See, e.g., HQ 965200, dated July 10, 2002; NY 815402, dated October 20, 1995; NY H87740, dated February 26, 2002; and HQ 959637, dated December 4, 1997 and rulings cited therein.

Customs has previously classified various decorative glass articles intended for use outside the home under subheading 7013.99, HTSUS. Headquarters Ruling Letter (“HQ”) 964629, dated April 4, 2001, addresses Customs’ position on the classification of decorative glass garden ornaments similar - insofar as they were decorative glass articles intended for outdoor use - to the articles under consideration. In HQ 964629, an argument was made, nearly identical to that at issue, that classification of the articles under heading 7013, HTSUS, was precluded because the articles were intended for outdoor use. In HQ 964629 we stated that:

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.

HQ 964629 cited rulings that reached similar conclusions: 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.

In HQ 961862, dated June 8, 1999; NY D85317, dated December 31, 1998; NY 854355, dated July 27, 1990; NY I87123, dated October 11, 2002; NY 887900, dated July 26, 1993; NY 888581, dated August 16, 1993; and NY G82332, dated October 12, 2000, we classified birdfeeders of varied (plastics, earthenware, etc.) composition intended for use outside the home as household articles according to the constituent material.

Thus, our classification of bird feeders that are clearly intended for use outside of the home as household articles comprised of their constituent material has been both consistent and longstanding. 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 protestant relies upon two prior rulings to justify its position in this protest: HQ 953384 dated September 14, 1993, and HQ 957413, dated March 31, 1995. Both of those rulings concerned the classification of bell-shaped glass articles intended to be used with wrought iron stands. In finding that the bell-shaped glass articles were parts of the composite goods, we found, in reliance upon the holding of the U.S. Court of International Trade in Riekes Crisa Corp v. United States, 14 CIT 235 (1990), that the articles could not be classified under heading 7013 because that heading does not contain a “parts” provision. Riekes Crisa classified a drinking glass for the yard-of-ale as articles not specially provided for, of glass, in item 548.05, Tariff Schedules of the United States (“TSUS”) (the precursor provision to subheading 7020.00.00, HTSUS). The court stated that the glass was only a part of the completed yard-of-ale and, therefore, could not be classified as a drinking glass in items 546.56 and 546.59, TSUS, depending upon the value of the article (the precursor provision to subheading 7013.29, HTSUS). In HQ 953384 we noted that:

The court stated that "[t]he evidence established that the imported articles are not substantially complete in their condition as imported, since the omission of the wooden stand is very significant to the overall functioning of the complete article." The court relied heavily on the evidence that in its imported condition the glass could not stand unless placed on the accompanying wooden stand. Therefore, the glass was found to be a part of an article and could not be classified as a drinking glass.

We engaged in a virtually identical analysis and reached the same conclusion in HQ 957413.

The decorative glass bottles at issue are readily distinguishable from the articles in HQs 953384 and 957413. The articles at issue are capable of performing their intended function upon importation and are readily recognizable as decorative glass bottles in their own right. Moreover, the bottles at issue can stand without support – a characteristic that was heavily relied upon by the CIT in Riekes Crisa. We are not persuaded by the arguments made in this regard by protestant.

HOLDING:

The octagonal glass bottles (part number 702/701, otherwise known as “gemstone” bottles) are classified under subheading 7013.99.50, 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: other: other: valued over $0.30 but not over $3 each.

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, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty (60) days from the date of the decision the Office of Regulations and Rulings will make the decision available to Bureau of Customs and Border Protection personnel, and to the public on the Bureau of Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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