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HQ 089254


December 20, 1991
CLA-2 CO:R:C:F 089254 STB

CATEGORY: CLASSIFICATION

TARIFF No.: 9505.10.1000

District Director of Customs
Columbia-Snake District
511 N.W. Broadway Federal Building
Portland, Oregon 97209

RE: Decision on Application for Further Review of Protest No. 2904-90-000192, filed December 17, 1990, concerning the classification of a glass ball (water globe) ornament. A sample was submitted for examination.

Dear Sir:

This is a decision on a protest filed December 17, 1990, against your decision in the classification and liquidation of a glass ball ornament, made July 12, 1990, and liquidated on September 21, 1990. The documents accompanying the Protest for Further Review indicate that the entries were made at Longview, Washington.

FACTS:

You classified the subject water globe ornament in subheading 7013.99.5000, HTSUSA, the provision for glassware for indoor decoration with an applicable duty rate of 30% ad valorem. Protestant claims that the merchandise should be classified under subheading 9505.10.1000, HTSUSA, the provision for Christmas ornaments dutiable at a rate of 6.6% ad valorem.

The sample is a 45 mm, 2-1/2 inch glass dome (or globe) filled with water containing a figure of a small bear. The bear is wearing a Santa Claus type hat, a red bow and a scarf decorated with traditional Christmas colors and is holding a candy cane. When the dome is shaken or turned upside-down, small white particles scatter and then fall slowly on the figure in order to depict a snowfall. A light-weight wooden base or stand is attached to the bottom of the globe. A loop is permanently attached to the top of the glass ball. According to the importer, the loop is intended for hanging the item on a Christmas tree.

The importer also submitted a catalog. The sample article is pictured with five other water globe items of the same size, all of which depict various Christmas related scenes. The catalog lists these six articles as items "CH2443-6 ASST." These items are grouped together in a corner of a page that depicts various other water globes of various sizes in their own separate groups; the title of the page is "WATER BALLS." The articles of the same item number of the sample are all shown with the loops artificially suspended straight up so that they are clearly visible in the catalog. The other water balls pictured on this page are clearly shown not to have loops, including another item number that depicts six globes otherwise identical to the ones at issue; the only difference is that the other articles do not have loops. These items are to be sold at retail in boxes decorated with Christmas motifs and colors. The boxes themselves do not have "Christmas tree ornament" or any other words describing the items as tree ornaments or otherwise, printed on them.

ISSUE:

Whether the water globe articles should be classified as articles of indoor decorative glassware or as Christmas tree ornaments?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all 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 GRI's may then be applied.

The first determination that must be made is whether the subject articles qualify for classification as Christmas tree ornaments in Heading 9505, HTSUSA. The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the scope of the headings. Explanatory Note (A)(2) to Chapter 95, HTSUSA, stresses that this chapter applies to articles "traditionally used at Christmas festivities" (emphasis added). Since Christmas tree ornaments are traditionally used at, and associated with Christmas, this item only needs to qualify as a Christmas tree ornament to be classified in heading 9505, HTSUSA. Customs has ruled that if an item qualifies as a Christmas tree ornament it is not necessary that the item itself demonstrate a singularly

Christmas motif or be an item that would otherwise be traditionally associated with Christmas. See, for example, Headquarters Ruling Letter (HRL) 083330, dated April 10, 1990, in which small china dolls dressed in Victorian outfits were classified in heading 9505, HTSUSA, as Christmas tree ornaments.

To be classified as a Christmas tree ornament, Customs requires that the following three criteria be met: (1) that the item is marketed and sold as a Christmas tree ornament; (2) that there is some method, generally a loop attached to the top, to secure or hang the item on a tree; and (3) that the item is not too big or too heavy to be hung or attached to a tree. The subject merchandise satisfies these three criteria. It is clear that criteria (2) and (3) are met: a loop is attached to the top of these items and they are not too big or heavy to be secured to Christmas trees as tree ornaments. The loops cannot be removed from the balls without permanently harming the appearance of the items, and only then with extreme difficulty. The only question that arises is whether they are marketed and sold as Christmas tree ornaments; the boxes that they are sold in at retail do not specify that they are tree ornaments and they appear in the catalog in the water ball section. However, we think it important that the hanging loops attached to these items are clearly shown in the catalog to indicate to any prospective buyer that these items are Christmas tree ornaments. Moreover, a close examination of the catalog reveals that the organization of much of the catalog is by theme, i.e., "Santa Collection", "Gold Renaissance", "Romance Line", "Water Balls", etc. In each of these various sections, some of the items are Christmas tree ornaments and some are not; the tree ornaments are invariably depicted with their loops suspended so that they are clearly visible. It is apparent in viewing the catalog that these items are being marketed (or advertised) and sold as Christmas tree ornaments.

For the reasons described above, the subject merchandise satisfies the three requirements for classification as Christmas tree ornaments.

HOLDING:

The glass water ball ornaments are classified in subheading 9505.10.1000, HTSUSA, the provision for articles for Christmas festivities, Christmas ornaments, of glass. The applicable duty rate is 6.6% ad valorem.

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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