CLA-2 OT:RR:CTF:TCM H208175 TNA
Mary Brinkman, Customs Specialist
Customs Import Compliance Department
Kohl’s Department Stores
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051
RE: Classification of glass place card holders
Dear Ms. Brinkman:
This letter is in response to your request, dated July 13, 2009, on behalf of Kohl’s Department Stores, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of Glass Place Card Holders. We initially responded by saying that we could not issue a ruling because of prior inconsistent rulings. After examining these prior rulings, we have come to the conclusion that no inconsistency exists. As a result, we now issue this ruling as per your initial request. We apologize for the delay.
FACTS:
The subject merchandise consists of glass place card holders in the shape of a Christmas ornament. It is bright red and contains circles of glitter for decoration. The item as a whole is round, though it has a flat bottom. The top of the item contains a round ring with which to hold a place card. The ring protrudes from a square piece that has scalloped sides and sits atop the round portion of the item. It is made of the same material and is the same color as the rest of the item. Each scalloped edge is decorated with a Christmas tree. The round part of the item is made of glass and the card holder is made from polyvinyl chloride (“PVC”) and iron. Each item is made of hand blown glass and then electroplated in silver for a shiny, metallic finish. The subject merchandise, which will be sold in Kohl’s table top area under the St. Nicholas label, is intended to decorate a table and hold a place card.
A sample of the subject merchandise was received and examined by this office at the time of your initial ruling request. As per your request, the sample was returned with our first response.
ISSUE:
Whether glass place card holders shaped as Christmas ornaments should be classified in heading 7013, HTSUS, as glassware of the kind used for table or kitchen purposes other than that of glass ceramics; under heading 9505, HTSUS, as festive articles; or under heading 9817, HTSUS, as utilitarian articles in the form of three dimensional representations of holiday motifs or symbols?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 HTSUS provisions under consideration are as follows:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
* * * * * * * * * * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
* * * * * * * * * *
9817 Articles classifiable in subheadings 3924.10, 3926.90, 6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40 or 9405.50, the foregoing meeting the descriptions set forth below:
9817.95.05 Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States
Note 1(v) to Chapter 95, HTSUS, states:
This chapter does not cover:
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
Note 1 to Chapter 98, HTSUS, states:
The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 7013, HTSUS, states, in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
(1) Table or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar-bowls, sauce-boats, fruit-stands, cake-stands, hors-d’oeuvres dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice-buckets.
(2) Toilet articles, such as soap-dishes, sponge-baskets, liquid soap distributors, hooks and rails (for towels, etc.), powder bowls, perfume bottles, parts of toilet sprays (other than heads) and tooth-brush holders.
(3) Office glassware, such as paperweights, inkstands and inkwells, book ends, containers for pins, pen-trays and ashtrays.
(4) 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 to heading 9505, HTSUS, states, in pertinent part:
This 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:
Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
Prior CBP rulings have addressed the classification of similar merchandise. In NY N026182, dated May 9, 2008, for example, CBP classified two sets of place card holders. Each set consisted of six place card holders in the shape of a Christmas ball with a flat bottom. Each card holder had the double looped metal wire that is attached to the top of the holder, into which a place card could be inserted. In NY N026182, we classified this merchandise under heading 7013, HTSUS, as glassware of a kind used for the table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics. We reasoned that the merchandise’s metal ring allowed it to hold a place card, thereby serving a utilitarian function. As a result, despite having the shape of a Christmas ornament, we excluded the merchandise from heading 9505, HTSUS, by virtue of Legal Note 1(v) to Chapter 95, HTSUS.
In the present case, we agree with NY N026192’s analysis of its merchandise as a utilitarian object, and believe that this analysis applies to Kohl’s merchandise as well. We note, however, that NY N026192 did not consider classification in heading 9817, HTSUS. In the present case, the subject merchandise, in addition to its utilitarian aspects, is a three-dimensional representation of a Christmas tree ornament. We have long recognized Christmas tree ornaments to be “closely associated with a festive occasion” to the degree that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.” See Park B. Smith, Ltd. v. United States, 25 C.I.T. 506 (Ct. Int’l Trade 2001), aff’d in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004); see also HQ 963254, dated January 4, 2000; NY H88121, dated February 20, 2002; NY H88122, dated February 20, 2002; NY H88114, dated February 14, 2002; NY H88117, dated February 14, 2008, among others.
As such, the subject merchandise is covered by subheading 9817.95.05, HTSUS, which provides for articles classifiable in subheading 7013.49 that are also utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States. We have consistently placed three dimensional, utilitarian objects with a holiday theme in this subheading. See, e.g., HQ H019363, dated January 22, 2008; NY N025134, dated March 31, 2008; NY N053179, dated March 20, 2009, among others. As a result, the subject merchandise is classified in subheading 9817.95.05, HTSUS.
HOLDING:
Under the authority of GRI 1, the subject glass place card holders are provided for in heading 9817, HTSUS. Specifically, they are classified under subheading 9817.95.05, HTSUS as “articles classifiable in subheadings… 7013.49…, the foregoing meeting the descriptions set forth below: utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.” As such, the general column one rate of duty is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
Sincerely,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch