CLA-2 CO:R:C:F 951417 GGD
Mr. Louis S. Shoichet
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, New York 10004
RE: Modification of NYRL 861678; a "Christmas Candle" from China
and/or Taiwan
Dear Mr. Shoichet:
This letter is in further response to your inquiry of March
22, 1991, on behalf of your client, concerning the tariff
classification of a decorative article imported from China and/or
Taiwan by Avon Products, Inc. A sample was submitted with your
inquiry.
FACTS:
In New York Ruling Letter (NYRL) 861678, dated April 23,
1991, Customs classified the item under subheading 9505.10.5000,
HTSUSA, which provides for articles for Christmas festivities,
that are other than Christmas ornaments, nativity scenes or
figures thereof, and are other than plastics. The applicable
duty rate for that subheading is 5.8 percent ad valorem. We have
reviewed that ruling and have found it to be partially in error.
The correct classification is as follows.
The article measures approximately 5 inches in height by 5-
1/2 inches in length, is constructed entirely of glass, and is
sold with a wax candle measuring approximately 3/4 of an inch in
height by 1-1/2 inches in diameter. An image of Santa Claus on
top of a roof is molded into the glass, which may be illuminated
from behind by a candle placed in a round indentation in the
item's base. The article has no top or rear portions.
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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 (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. The Explanatory Notes (EN's) 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 GRI's.
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:
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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 article is made of non-durable material.
Customs considers articles such as these to be made of non-
durable material when they are not designed for sustained wear
and tear, and are not purchased for their extreme worth or value
(as would be a decorative, yet costly piece of art or crystal).
In addition, the primary function of the article is decorative,
as opposed to utilitarian.
It appears, however, that this article is not traditionally
associated with or used for the particular festival of Christmas.
Although said to be a candle holder, the item is actually a
decorative piece of glass which a candle may illuminate. While
this particular piece of glass bears a festive motif (i.e., the
image of Santa Claus), the motif does not determine its
classification or transform the article into a festive article.
Since the article cannot be classified as festive, it 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 7013.99.80, HTSUSA, the
provision for other glassware used for indoor decoration, valued
between $3 and $5 each.
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HOLDING:
The article identified as a "Christmas Candle" is classified
under subheading 7013.99.80, HTSUSA, the provision for
"[g]lassware of a kind used for...indoor decoration or similar
purposes...: Other glassware: Other: Other: Other: Valued over $3
each: Other: Valued over $3 but not over $5 each." The
applicable duty rate for this subheading is 15 percent ad
valorem.
This notice should be considered a modification of NYRL
861678 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 861678 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, NYRL
861678 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division