CLA-2 CO:R:C:F 955239 LPF
District Director
U.S. Customs Service
2nd and Chestnut Streets
Philadelphia, PA 19106-2699
RE: Decision on application for further review of Protest No.
1101-93-100469, filed August 23, 1993, concerning
classification of glass ball picks; Heading 7013, glassware of
a kind used for indoor decoration or similar purposes; Not
9505 festive articles; HRLs 952968, 950958, 953183.
Dear Sir:
This is a decision on a protest filed August 23, 1993, against
your decision in the classification of merchandise liquidated on
August 13, 1993. Samples of the merchandise were submitted to our
office for review.
FACTS:
The articles at issue, imported from Taiwan, are glass ball
picks comprised of colored glass balls attached to wire stems.
They may be used to decorate floral arrangements, plants, wreaths,
and gift packages. The protestant entered the articles under
subheading 9505.10.5000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Festive, carnival or other
entertainment articles...: Articles for Christmas festivities and
parts and accessories thereof: Other: Other," at a duty rate of
5.8 percent ad valorem.
You classified the articles under subheading 9505.10.1000,
HTSUSA, as "Festive, carnival or other entertainment articles...:
Articles for Christmas festivities and parts and accessories
thereof: Christmas ornaments: Of glass," at a duty rate of 6.6
percent ad valorem.
ISSUE:
Whether the glass ball picks are classifiable within heading
9505 as festive articles or heading 7013 as glassware of a kind
used for indoor decoration or similar purposes.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported goods are classified
by application of GRI 1, that is, 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
Explanatory Notes (ENs) to the Harmonized Commodity Description and
Coding System, which represent the official interpretation of the
tariff at the international level, facilitate classification under
the HTSUS by offering guidance in understanding the scope of the
headings and GRIs.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The ENs to 9505 indicate that the
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) Decorations such as festoons, garlands,
Chinese lanterns, etc., as well as various
decorative articles made of paper, metal foil,
glass fibre, etc., for Christmas trees (e.g.,
tinsel, stars, icicles), artificial snow, coloured
balls, bells, lanterns, etc. Cake and other
decorations (e.g., animals, flags) which
are traditionally associated with a particular
festival are also classified here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs....
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
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3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
The picks could be considered to be made of non-durable
material because they are not designed for sustained wear and tear,
nor are purchased because of their extreme worth or value (as would
be the case with a decorative, yet costly, piece of art or
crystal). In addition, the articles' primary function is
decorative, as opposed to utilitarian.
However, when examining the picks, in their entirety, it is
evident that they are not traditionally associated or used with
the particular festival of Christmas. The picks are not ejusdem
generis with those articles cited in the ENs to 9505 as exemplars
of traditional, festive articles. On the contrary, the picks may
serve to decorate plants, floral arrangements and centerpieces,
gift packages, etc. throughout the year on various occasions.
Because neither heading 9505 nor any other HTSUS provision
appropriately provides for the picks, in their entirety, the
articles must be classified according to the materials which
comprise the picks. See Headquarters Ruling Letters 952968, issued
January 26, 1993, 950958, issued February 1, 1993, and 953183,
issued March 22, 1993.
Since the picks consist of different materials provided for
in two different HTSUS headings, we are directed by GRI 3(a) to
classify the picks under the heading which provides the most
specific description of the good. However, because each of the
possible headings, in this case, refers to only part of the good,
the headings are regarded as equally specific, and we do not
classify the article by GRI 3(a) but rather by GRI 3(b).
GRI 3(b) provides that articles made up of different
materials, that is, composite goods, shall be classified as if they
consisted of the component which gives them their essential
character. In this case, in accordance with EN VIII to GRI 3(b),
the glass material appears to provide the greatest bulk, weight,
and value. In addition, based on use, the glass imparts the
essential character since it provides the decorative effect of the
picks.
Accordingly, the picks are classified within heading 7013,
the provision providing for glassware of a kind used for indoor
decoration or similar purposes. As it is our understanding that
the glass material is valued at less than $0.30 each, the
appropriate subheading is 7013.99.40.
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HOLDING:
The glass ball picks are classifiable in subheading
7013.99.40, HTSUSA, as "Glassware of a kind used for table,
kitchen, toilet, office, indoor decoration or similar purposes...:
Other glassware: Other: Other: Other: Valued not over $0.30 each."
The general column one rate of duty is 38 percent ad valorem.
Since the rate of duty under the classification indicated
above is more than the liquidated rate, you are instructed to deny
the protest in full. A copy of this decision with the Form 19
should be sent to the protestant.
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 the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of the
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, Lexis, the Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division