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HQ 955239


February 28, 1994

CLA-2 CO:R:C:F 955239 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.40

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.

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

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.

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

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