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HQ 964525




January 23, 2001

CLA-2 RR:CR:GC 964525 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.29

Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Ruling request of NOEL flute glasses

Dear Ms. Richardson:

This letter is in response to your letter dated February 25, 2000, on behalf of Arc International, to the National Commodity Specialist Division, in which you requested a tariff classification ruling of NOEL flute glasses, under the Harmonized Tariff Schedule of the United States (HTSUS).

Your letter was forwarded to this office for our reply.

FACTS:

The flute glasses are created in France by compression mold technique in the colors of red and green. The entire glass measures approximately 9.5 inches in height. The stem portion spells the word “NOEL” in clear glass with letters stacked vertically one upon the other. The stem portion measures 4.5 inches in height and the bowl portion measures 5 inches in diameter with a fluid capacity of 9.5 ounces. Counsel submitted a photograph of the articles for review.

ISSUE:

Whether the NOEL flute glasses are classifiable as festive articles within heading 9505, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) official interpretation of the Harmonized System at the international level. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings and legal notes under consideration are as follows:

Note 1(f),
Chapter 70 This Chapter does not cover: Toys, Games, sports requisites, Christmas
Tree ornaments or other articles of
Chapter 95);
Glassware of a kind used for a table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)

Drinking glasses, other than of glass-ceramics (con.):

Other:

7018 Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass smallwares and articles thereof other than imitation jewelry; glass eyes other than prosthetic articles; statuettes and other ornaments of lamp-worked glass, other than imitation jewelry; glass microspheres not exceeding 1 mm in diameter

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.

Articles for Christmas festivities and parts and accessories thereof

EN 70.13, HTSUS, indicates that heading 7013 provides, in pertinent part, for:

“glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views. The EN also notes that heading 7013 excludes articles of heading 7018 of a kind suitable for interior decoration (e.g., imitation flowers and foliage of glass beads and ornaments of lamp-worked glass).”

ENs to heading 7018 indicate that the heading provides, inter alia, for:

“Statuettes and other ornaments (other than imitation jewelry) [which] are obtained by working in the pasty state with a blow-pipe, [which] are designed for placing on shelves (animals, plants, statuettes, etc); [and]generally made of clear glass (lead crystal, strass, etc.) or “enamel” glass.”

As the subject glasses are not created by blow-pipe, nor designed for interior decoration, heading 7018 is out of contention.

The articles are potentially described by both headings 7019 and 9505, HTSUS. Both headings are considered principal use provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:

[i]n the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

First, with respect to which heading is controlling on the issue of use, we consider heading 9505, which provides for festive articles. Counsel for the importer contends that as the NOEL flute glasses are used in celebration of Christmas and meet standards outlined in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest) and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum), they are classifiable as articles for Christmas festivities in subheading 9505.10, HTSUS.

Moreover, note 1(f) to Chapter 70, HTSUS, provides that “this chapter does not cover articles of Chapter 95”. Thus, if the subject glasses are classifiable under heading 9505, then note 1(f) to Chapter 70 precludes classification under heading 7013.

An article may be classified in heading 9505 if it meets the "class or kind" criteria for festive articles as provided for in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997). In this case, the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles," and provided new guidelines for classification of such goods in the heading. It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class of "festive articles." In general, merchandise is classifiable as a festive article in heading 9505, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in the celebration of, and entertainment on, a holiday; and 3. Is associated with or used on a particular holiday.

Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of "festive articles," decorative household articles which are representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (hereinafter ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative articles related to holidays and symbols not specifically recognized in Midwest or in the ICP, 32 Customs Bulletin 2/3 at p. 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “festive articles”. Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

With respect to Midwest, the subject glasses are not predominantly of precious or semiprecious stone. They are three-dimensional, functional drinking glasses (with a containment capacity of approximately 9.5 ounces) used in celebration of the Christmas holiday. The principal question is whether they contain any recognized symbols traditionally associated with Christmas.

Although the subject glasses are manufactured in red and green (colors which are traditionally associated with Christmas), the glasses’ colors alone are not determinative that the subject glasses are festive articles within heading 9505. Further, Customs does not recognize red and green as symbols traditionally associated with Christmas. See Headquarters Ruling Letter (HQ) 087160, dated August 22, 1990 (which classified in subheading 3926.40, HTSUS, a snowman which had spare use of traditional Christmas colors (a red and green hat) and a “peace lamb”, which did not contain any use of traditional Christmas colors).

Counsel argues that as the instant articles contain the word “NOEL” in their stem portion, they are classifiable as festive articles in heading 9505. Customs recognizes that “for purely decorative items, patterns or motifs (in this case, the NOEL term) will raise the possibility of classification as festive (if allowed by the Chapter notes) by application of the factors discussed in Carborundum. See ICP, "Classification of Festive Articles," at 7. However, we note that as the instant glasses are not purely decorative and that counsel acknowledges that the glasses are utilitarian in nature for use as drinking glasses, we do not find this argument to be applicable.

In the case of functional articles such as these, Customs recognizes that where an article is functional and utilitarian, it must be a three-dimensional, full-bodied representation of the term “NOEL” and meet the Carborundum use test for classification within subheading 9505.10. See ICP at 8. Here, we do not believe the articles are a full-bodied representation of NOEL as this term is limited to the stem portion, not the whole glass. We refer to HQ 961839, dated May 20, 2000, as the Snowman Mug (item #G4378) is similar to the instant glasses. In HQ 961839, the mugs was described as an “embellished or decorated beverage mug”, and was classified in subheading 6912.00.44. Like this mug, the subject glasses do not “lose (their) identity (as drinking glasses) by virtue of bearing (the red and green colors as well as the word ‘NOEL’ in their stem portion.)”

We would not dispute that the glasses may be stocked and sold more around the Christmas season than other times of the year. However, their purchase is not dispositive that they fall within the class of seasonal festive merchandise as the courts have construed it so far.

Therefore, as the flute glasses are not part of a class of festive articles within heading 9505, note 1(f) to Chapter 70 does not apply. Following GRI 1, they are properly classifiable in subheading 7013.29, HTSUS, which provides for “drinking glasses, other than of glass-ceramicsother”.

HOLDING:

At GRI 1, the flute glasses are classifiable within subheading 7013.29, HTSUS. Classification at the tariff rate line will be contingent on the value of the merchandise.

Sincerely,

John Durant, Director
Commercial Rulings Division

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