CLA-2 OT:RR:CTF:TCM H082597 JPJ
Mr. Tony To
Rainbow Brothers Ltd.
29/F Paul Y Centre
51 Hung To Road
Kwun Tong, Hong Kong
RE: Classification of a “Halloween Glass Decoration”
Dear Mr. To:
This letter is in response to your electronic ruling request dated September 24, 2009, and supplement received October 8, 2009, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an item you describe as a “Halloween Glass Decoration”. Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. A sample was forwarded with your request.
FACTS:
The merchandise consists of a semi-opaque glass cross measuring approximately 6” in height by 4-7/8” across by ¼” in thickness. Imprinted on the glass, are the words “Your smile lights up our World! Wishing you a Halloween Bright and full of fun.” A silver polyester ribbon is tied through a 1/8” hole at the top of the cross, and attached to the ribbon is an orange cardboard hangtag approximately 2” x 2”. The cardboard hangtag is decorated with a black spider on a web, an orange castle surrounded by flying bats, and the words: “Halloween Glass Hanging Decoration.” The unit value of the merchandise is over $0.30, but less than $3.00.
ISSUE:
Whether the “Halloween Glass Decoration” is classified in heading 7013, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, or in heading 9505, HTSUS, as festive, carnival or other entertainment articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions 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):
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9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
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Note 1 to Chapter 70, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(f) Toys, games, sports equipment, Christmas tree ornaments or other articles of chapter 95 (excluding glass eyes without mechanisms for dolls or for other articles of chapter 95); . . .
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The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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. 35127-28 (Aug. 23, 1989).
The ENs to heading 7013, HTSUS, state, in relevant part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
* * *
(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.
These articles 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 (for example, certain trays fitted with handles). Table centres consisting of a simple mirror are, however, excluded (see Explanatory Note to heading 70.09).
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The ENs to heading 9505, HTSUS, provide in relevant part:
* * *
This heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:
(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
* * *
Pursuant to Note 1 to Chapter 70, HTSUS, if the merchandise is an article of Chapter 95, HTSUS, it is excluded from Chapter 70, HTSUS.
Merchandise is classifiable in heading 9505, HTSUS, as a festive article if the article satisfies two criteria: (1) it must be closely associated with a festive occasion and (2) it must be used or displayed principally during that festive occasion. Additionally, the article must be “closely associated with a festive occasion” to the degree that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.” Michael Simon Design, Inc. v. United States, 452 F. Supp 2d. 1316 (Ct. Int’l Trade 2006), aff’d 501 F. 3d 1303 (Fed. Cir. 2007) reh’g denied (Fed. Cir. April 2, 2008) (citing Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) (citing Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997))).
Applying the Michael Simon two-part test, we find that the merchandise is not closely associated with Halloween. A cross it is not so intrinsically linked to Halloween that its use during other time periods would be aberrant. Regarding the second prong of the two-part test, a cross is not used or displayed principally during Halloween. CBP has regarded the cross as a “religious emblem”. See HQ 954718, dated November 10, 1993. Therefore, the merchandise fails both prongs of the two-part test. Although the cardboard hangtag and the word “Halloween” printed on the article seem to indicate that it is for Halloween, CBP has consistently stated that neither the motif nor the sale of a good alone is sufficient to transform an article into a festive article. See Headquarters Ruling Letters (HQ) 958406 dated January 23, 1996; HQ 966215, dated February 23, 2003; and HQ 964411, dated May 2, 2002.
The merchandise is not a festive article of heading 9505, HTSUS. Therefore, because it is not excluded by Note 1(f) to Chapter 70, HTSUS, it is classifiable in heading 7013, HTSUS, specifically subheading 7013.99.50, HTSUS.
HOLDING:
In accordance with GRI I, the “Halloween Glass Decoration” is classified in heading 7013, HTSUS, specifically, 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: Other: Valued over $0.30 but not over $3 each.” The 2009 general, column one rate of duty is 30%.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch