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HQ 958841




July 8, 1996

CLA-2 RR:TC:FC 958841 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.5000

Mr. Tom Krysiak
Purchasing Director
Institutional Financing Services
5100 Park Road
Benicia, California 94510

RE: Reconsideration of NY A81027; Decorative Glass Made in China; Not Festive

Dear Mr. Krysiak:

This is in response to your letter of March 22, 1996, requesting reconsideration of NY A81027, dated March 13, 1996, issued to a broker on behalf of Institutional Financing Services by our New York office, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The subject merchandise, identified as a "Glass Christmas Tree," Item #236, is made of clear ordinary glass, six inches in height, and valued at $1.20. A catalog photograph depicts the item as an undecorated evergreen-style tree. The item is marketed for the Christmas holidays with articles associated with Christmas festivities. In your submissions, you claim that the glass tree should be classified under subheading 9505.10.1000, HTSUSA, the provision for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: of glass. The New York office found that although sold as a "Christmas" tree, this item depicts only an evergreen tree and as such could be displayed all year round, not just at Christmas. The ruling classified the article in subheading 7013.99.5000, HTSUSA, the provision for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . . other glassware: other: other: other: valued over $0.30 but not over $3 each.

ISSUE:

Whether the item should be classified as a festive article, or as other glassware of a kind used for indoor decoration.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUSA, provides for, among other items, festive, carnival, and other entertainment articles. The EN to 9505 indicates 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

The subject articles are made of non-durable material. They are not designed for sustained wear and tear, nor purchased for their extreme worth or value (as would be a decorative, yet costly piece of art or crystal). The primary function of the article is decorative, as opposed to utilitarian.

The glass tree is advertised in a "Christmas" catalog. Nevertheless, this piece of glass depicts an undecorated evergreen tree, not a decorated evergreen tree as would be traditionally associated with or used at Christmas festivities. The article itself is merely a decorative piece of glass. The fact that it is marketed under the name "Glass Christmas Tree" does not, in and of itself, convey the requisite association with Christmas. (See, Headquarters Ruling Letter (HRL) 951417, dated April 9, 1993. There, a "Christmas Candle" with a Santa Claus image was classified in heading 7013, HTSUSA, as glassware. Also see, HRL 955239, dated February 28, 1994; HRL 087878, dated May 20, 1991. Both involve glassware with a holiday motif, yet Customs classified the articles in heading 7013, HTSUSA) Since the glass trees cannot be classified as festive, they must be classified elsewhere.

Heading 7013, HTSUSA, provides for, among other items, glassware of a kind used for indoor decoration or similar purposes. The EN to heading 7013 indicates that the heading covers glassware for indoor decoration and other glassware (including that for churches and the like), souvenirs bearing views, and that the glass may be colored, frosted, etched, engraved, or otherwise decorated.

It is our determination that the article of decorative glassware is classified in subheading 7013.99.5000, HTSUSA, the provision for "glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . .: Other glassware: Other: Other: Other: Valued over $0.30 but not over $3 each." This ruling affirms NY A81027, March 13, 1996.

HOLDING:

The article identified as a "Glass Christmas Tree" is classified under subheading 7013.99.5000, HTSUSA, the provision for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . . other glassware: other: other: other: valued over $0.30 but not over $3 each, dutiable at 30 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification

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