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HQ 956417




November 23, 1994

CLA-2 CO:R:C:F 956417 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Mr. Arlen T. Epstein
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048

RE: "Easter Egg Waterball Ornament;" Not Festive Article or Other Article of Plastics

Dear Mr. Epstein:

This is in response to your inquiry of May 12, 1994, on behalf of your client, Papel Freelance, a wholly-owned subsidiary of Russ Berrie & Co., Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an article identified as an "Easter Egg Waterball Ornament," imported from Taiwan. A sample was submitted with your request. Subsequent to your request and submission, a conference was held with Headquarters personnel on September 22, 1994. An additional submission was subsequently received and considered.

FACTS:

The article at issue, identified by item no. PI 4112, is a clear glass, roughly egg-shaped, water-filled ball, measuring approximately 2-3/4 inches in height, by 1-1/2 inches in diameter. The top of the ball has a gold-colored, metal cap. The cap has a loop through which a pink ribbon is strung, which allows the item to be suspended for decoration. Attached to the bottom of the ball's interior is a plastic sculpture of a chick seated in one half of a decorated egg shell atop a cushion of flowers and colored particles. When the ball is shaken, the particles circulate and settle downward.

ISSUE:

Whether the article should be classified in heading 9505, HTSUS, the provision for festive articles; in heading 3926, HTSUS, the provision for other articles of plastics; or in heading 7013, HTSUS, the provision for glassware of a kind used for indoor decoration.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 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, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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.

In general, merchandise is classifiable in heading 9505, HTSUS, 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the article to be made of non-durable material, since it is not purchased because of its extreme worth or value. The item is also primarily decorative in function, although its manipulation provides some degree of amusement.

Upon examination of the third criterion, however, we note that the article is essentially a water globe, a type of merchandise not traditionally associated or used with a particular festival. Although the water ball's interior suggests a spring-like, perhaps Easter theme, an item's motif - as previously noted - does not transform an article not traditionally associated with Easter into a festive article.

You assert that several New York Ruling Letters (NYRLs) support classification of the item as a festive article. The cited rulings, however, involve a variety of decorative eggs, not water balls. In classifying festive articles, it is Customs position that Easter eggs that are a) decorative and b) egg- shaped, are traditionally associated with Easter, and are thus classifiable in heading 9505. See NYRL 869630, issued January 6, 1992. In this and the other rulings cited, it is the decorative eggs' exteriors that manifest the items' ornamental aspects, i.e., decorative glass shells, hand painted shells, assorted colors of plastic "eggs in a bag," and designs of flowers, bunnies, and other fancy work on or around the eggs.

The "Easter Egg Waterball Ornament" is not a decorative egg but a hanging glass water globe in the approximate shape of an egg. Since the exterior is undecorated, and the glass and water
are transparent, the eye does not initially perceive the globe's shape, but is drawn to the item's interior - to the chick, shell, and particles. We do not find the water ball ornament to be the type of article traditionally associated with Easter.

Merchandise similar to the subject water ball was classified in NYRL 850002, issued March 27, 1990. In that ruling, it was held than an egg-shaped, glass water globe containing an Easter bunny figurine playing with Easter eggs, was classified in heading 7013, HTSUS. Although that article was mounted on a wooden base and had no ribbon loop for suspension, we find the distinction to be insignificant for classification purposes. In light of the above, the item is not classified under heading 9505, HTSUS, and must be classified elsewhere.

You state that, if not classified in heading 9505, the alternative classification of the item should be in heading 3926, HTSUS - which provides for other articles of plastics and articles of other materials of headings 3901 to 3914 - based upon your belief that the interior plastic sculpture, rather than the glass ball, imparts the essential character of the whole article. We disagree. Pursuant to GRI 3(b), in considering the composite nature of glass water globes with only interior plastic components, Customs has consistently found that the glass component provides the essential character, due generally to its weight, bulk, substantial value, and the role it plays enclosing the water, the drifting particles, and the sculptures. See HRLs 087878 and 088290, issued May 20 and March 6, 1991, respectively.

Heading 7013, HTSUS, provides for "Glassware of a kind used for...indoor decoration or similar purposes." The ENs to heading 7013 indicate that in addition to decorative glassware, the heading covers glassware such as ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage), and souvenirs bearing views. It is our determination that the "Easter Egg Waterball Ornament" is classified in subheading 7013.99.50, HTSUS, the provision for "Glassware of a kind used for...indoor decoration or similar purposes...: Other glassware: Other: Other: Other: Valued over $0.30 but not over $3 each."

HOLDING:

The "Easter Egg Waterball Ornament," identified by item no. PI 4112, is classified in subheading 7013.99.50, HTSUS, the provision for "Glassware of a kind used for...indoor decoration
or similar purposes...: Other glassware: Other: Other: Other: Valued over $0.30 but not over $3 each." The applicable duty rate is 30 percent ad valorem.

Sincerely,

John Durant, Director

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