CLA-2 CO:R:C:F 089372 STB
Mr. Guy Robbins
Tuesday Morning Inc.
14621 Inwood Road
Dallas, Texas 75244
RE: 45mm Water Globe on Swan; Santa Figure Inside Globe
Dear Mr. Robbins:
This letter is in response to your inquiry of May 9, 1991,
regarding the tariff classification of an item which consists of
the figure of a swan, on top of which rests a water globe with a
Santa figure inside the globe. A sample was submitted with your
inquiry.
FACTS:
The item in question consists of a 45 mm water globe which
rests on the top of a much larger swan figure. A Santa Claus
figure is located inside the globe. Your "style number" for the
item is UF90712A. Our New York laboratory examined your sample
and determined that the swan figure is made of stone (dolomite)
agglomerated with plastic materials.
You stated in your inquiry that the item was entered under
subheading 9505.10.2500, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the provision for Christmas ornaments,
eligible for duty-free treatment. You further stated that you
were then notified by Customs that the item was being liquidated
under subheading 7013.99.5500, HTSUSA, the provision for
glassware for indoor decoration, dutiable at a rate of 30% ad
valorem.
ISSUE:
What is the proper classification of the subject
merchandise?
-2-
LAW AND ANALYSIS:
Classification under the 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.
Since you suggest classification under subheading
9505.10.2500, HTSUSA, the provision for Christmas ornaments, we
will discuss that provision first. 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 heading 95.05, HTSUSA,
stresses that this chapter applies to articles "traditionally
used at Christmas festivities" (emphasis added). Christmas tree
ornaments are one type of item that is traditionally associated
with Christmas. 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 and designed to be hung from Christmas trees, 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 does not satisfy any of these criteria.
Having failed the Christmas tree ornament test, we will
consider whether this article could possibly be classified
elsewhere in heading 9505 as a festive article. Customs has
issued numerous rulings in which we have stated that water
globes, regardless of the motif represented by the figures inside
the globe, are not classifiable in heading 9505. Water globes,
as a class or kind of merchandise, are not "traditionally used
at", or associated with Christmas or any other festive occasion.
They are sold year-round and display a wide variety of motifs.
Additionally, water globes often serve a utilitarian purpose as
paperweights and are commonly considered to be collectors' items
-3-
regardless of whether the motif is holiday related. In your May
9 letter, you expressed an interest in reviewing prior Customs
rulings concerning the water globe/festive article distinction.
In response, we have inclosed copies of two such rulings,
Headquarters Ruling Letter (HRL) 088067, dated February 11, 1991,
and HRL 087878, dated May 20, 1991.
The fact that this particular item consists of a water globe
resting on the back of a swan serves to decrease the Christmas
nature of the motif. If, because of the swan, this figure were
to be classified as a statuette or figurine, rather than as a
water globe, classification in heading 9505 would still not be
appropriate. Statuettes and figurines are also used and sold
year-round for a variety of functions and are not traditionally
used at any particular festive occasion.
This item is a composite good, in a tariff sense, in that it
consists of the water globe, the figures inside, and the swan
figure. As a composite good, the article is not classifiable
under GRI 1 or 2, so reference must be made to GRI 3. GRI 3(b)
provides that composite goods constructed of different components
shall be classified as if they consisted of the component which
gives them their essential character. The Explanatory Notes to
GRI 3(b) indicate that essential character may be determined by
considering "the nature of the material or component, its bulk,
quantity, weight or value, or by the role of a constituent
material in relation to the use of the goods.
It is our determination that the essential character of
the item is provided by the swan figure which dominates the
whole in terms of weight, bulk and visual effect. The swan
figure, being constructed of stone (dolomite) agglomerated with
plastic materials, (artificial stone) is not provided for in any
provision relating to statuettes or figurines. The
classification of this item, therefore, is based on the material
forming the construction of the swan.
HOLDING:
The swan figure with 45 mm water globe, your style number
UF90712A, is classified in subheading 6810.99.0000, HTSUSA, the
provision for articles of cement, concrete, or artificial stone,
other, other. The applicable duty rate is 4.9% ad valorem.
-4-
This ruling will apply to prospective transactions only and
will not modify the previous denial of Protest No. 5501-91-
100087, which is a final administrative decision and binding on
both the importer and Customs for the entry covered by that
protest under the principles of San Francisco Newspaper Printing
Co. v. United States, 9 CIT 517 (1985).
Sincerely,
John Durant, Director
Commercial Rulings Division