CLA-2 RR:CR:GC 962128 JGB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: Modification of NY C88308; Crystal Blessing Cup; Midwest of Cannon Falls, Inc. v. United States
Dear Mr. Simon:
This is in response to your letter of August 12, 1998, on behalf of Waterford Wedgewood U.S.A., Inc., which requests reconsideration of New York Ruling Letter (NY) C88308, issued June 19, 1998, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a “crystal blessing cup” manufactured in Ireland. We discussed the classification of this article with you at a meeting at Headquarters on March 17, 1999.
This letter is to inform you that C88308 no longer reflects the view of the Customs Service concerning the classification of the crystal blessing cup and that the following reflects our position for this product.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice was published on September 8, 1999, in the Customs Bulletin, Volume 33, Number 35/36, proposing to modify NY C88308, dated July 19, 1998. No comments were received in response to this notice.
FACTS:
The crystal blessing cup is stated to have a lead monoxide content of approximately 32 percent and has a unit value of $32.26 per piece. The article, although marketed as a cup, is stemware measuring approximately 7½ inches in height. It is decorated with an engraved Star of David and, according to the informational insert, has three Hebrew words which are the last words of the blessing for wine, namely “creates the fruits of the vine.”
Information provided noted that the “glass is used to celebrate various Jewish festivals such as the Passover ritual. In addition, the blessing cup may also be used during other festive Jewish occasions such as the Kiddish, Havdalah, the Rite of Circumcision, the Redemption of the First-Born, the Ceremony of betrothal, the Marriage Blessings and Grace after Meals.”
ISSUE:
Whether the crystal blessing cup is classified in heading 7013, HTSUS, as a lead crystal drinking glass, or in heading 9505, HTSUS, as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) 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 GRI.
Heading 7013, HTSUS, provides for "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).” Subheading 7013.21.50, HTSUS, specifically provides for “Drinking glasses, other than of glass-ceramics: Of lead crystal: Valued over $5 each.”
Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are specifically provided for in subheading 9505.90, HTSUS.
Note 1(f) to Chapter 70, which includes heading 7013, HTSUS, provides that the chapter does not cover “Christmas tree ornaments and other articles of chapter 95.” Therefore, if the crystal blessing cup meets the standards for classification in chapter 95, the note will preclude classification under heading 7013 and necessitate classification under chapter 95.
In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, 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 celebration of, and for 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 the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 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 and utilitarian articles related to holidays and symbols not
specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind known as “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.
At issue here is whether the crystal blessing cup corresponds to articles used in celebration of a particular holiday. In other words, is the cut and etched piece of stemware which is commonly associated with drinking wine, so embellished here with a Hebrew lettering and symbols, that it has become part of the class of festive articles.
In considering the Midwest standards, the crystal blessing cup is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The blessing cup does appear to be a functional item used in the celebration of a festive occasion.
With respect to the general criteria set forth in Carborundum and further considered by the Court, we note that in terms of general physical characteristics, the cup is completely dedicated to use in connection with religious observance. The deep cutting of the Star of David on the side of the “cup” would limit the article’s usefulness to ritual observance and render it inappropriate for any other type of use, such as ordinary drinking of wine in connection with a meal. Moreover, the etching of Hebrew words around the bowl marks and distinguishes the article, tying it to a particular prayer recited in Hebrew.
The ultimate purchaser would have the expectation of using the article in connection with the celebration of the stated festive occasions and at no other time. While the article is decorative, in that it has a gold rim and it is made of a heavy lead-content glass, this article would appear to fall in the class of festive articles regardless of its decorative nature, in the same way that a “plain” nativity scene or Christmas stocking would also fall into that class.
Evidence of the channels of trade has not been presented, and it is unclear whether there would be stores that specialize in such merchandise. It would seem probable that the article would be offered year around in gift shops selling expensive items of high quality, as opposed to being offered for sale at a particular time of year or in religious supply stores. The latter point emphasizes that the use is intended to be in the home in a communal or family setting, not in houses of worship.
The environment of the sale is unclear. The use of the article in the same manner as merchandise which defines the class is satisfied in that the article will be used only on festive occasions, including the Sabbath, in a completely prescribed manner in connection with particular prayers, blessings and the like. In contrast to “ordinary” drinking glasses, including “ordinary” cut lead crystal and/or gilded stemware, the article will be sold only in units of one, not as a set or in multiples, and will be used until it breaks or is given away, only to be replaced by another blessing cup to be used for the same purpose.
The New York ruling under consideration here made a distinction between the Passover holiday during which the Seder plate would be used and “any number of Jewish festive occasions” providing an opportunity to use the crystal blessing cup. We differ with that opinion in our further consideration and understanding of the use of the crystal blessing cup. We are informed that the Sabbath observance is indeed festive and would be the most frequent use of the crystal blessing cup at the Kiddish and Havdalah marking the beginning and end of the observance. This use would satisfy the requirement that the article be used on a particular holiday that can be identified with certainty.
HOLDING:
The crystal blessing cup is classified in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival, or other entertainment articles,...parts and accessories therefor: Other: Other.”
NY C88308 is hereby modified.
In accordance with 19 U.S.C.1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division