CLA-2 OT:RR:CTF:TCM H043741 GC
Ruby Wood Sevcik
Pier 1 Imports, Inc.
100 Pier 1 Place, Level 16
Post Office Box 961020
For Worth, Texas 76161-0020
RE: Tariff classification of glass drink stirrers with decorative figure on the end
Dear Ms. Sevcik:
This is in response to your letters of June 9, 2008, and August 1, 2008, in which you request U.S. Customs and Border Protection (CBP) to issue a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), for three glass drink stirrers to be imported by your company, Pier 1 Imports, Inc. (Pier 1). Your ruling request was forwarded to this office on November 7, 2008, for reply.
FACTS:
At issue are three glass drink stirrers, named “Swizzle Sticks”. All three products are approximately eight inches in length and feature a Christmas tree (product number 2292019), snowman (product number 2291083), or “Jack-O-Lantern” (product number 2260524) on one end of a thin stem, with a rounded ball on the other end. The decorations account for approximately one inch of the overall length of the drink stirrers. The face of the white snowman consists of an orange nose in the shape of a carrot and black eyes (presumably coal) and the snowman is wearing a red and white scarf with a set of green ear muffs. The Christmas tree is green and features a red bulb on the top, with gold decorations around the outside. The face of the orange “Jack-O-Lantern” is detailed in black, and there is a green stem visible on the top of its head. The subject merchandise is advertised on the Pier 1 website under “dining accessories”. Laboratory analysis of the provided samples indicated that the subject merchandise was colored prior to the solidification of the glass, as well as the fact that the glass comprising the subject merchandise contains a fining agent, which limits the number bubbles, seeds or stones within the glass.
ISSUES:
Whether the subject glass drink stirrers are festive articles of heading 9505, HTSUS, or glassware of heading 7013, HTSUS?
If the subject glass drink stirrers are classified in heading 7013, HTSUS, whether they are considered tableware of subheading 7013.49, HTSUS, or other glassware of subheading 7013.99, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration in this case 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):
Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass ceramics:
7013.49 Other:
* * *
Other:
7013.49.20 Valued not over $3 each…
* * *
Other glassware:
7013.99( Other:
* * *
Other:
* * *
7013.99.40 Valued not over $0.30 each….
7013.99.50 Valued over $0.30 but not over $3 each…
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
9505.90 Other:
Note 1(f) to Chapter 70, HTSUS, excludes, in pertinent part, “…Christmas tree ornaments or other articles of chapter 95…” Thus, if the subject merchandise is described by the terms of heading 9505, HTSUS, then it is excluded from classification in Chapter 70.
In Michael Simon Design, Inc. v. United States, 452 F. Supp 2d. 1316 (Ct. Int’l Trade 2006), aff’d 501 F. 3d 1303 (Fed. Cir. 2007) reh’g denied (Fed. Cir. April 2, 2008), the Court of International Trade, citing Park B. Smith, Ltd. v. United States, 347 F. 3d 922, 929 (Fed. Cir. 2003), and Midwest of Cannon Falls, Inc. v. United States, 122 F. 3d 1423 (Fed. Cir. 1997), on the scope and meaning of heading 9505, applied a two-prong test to determine whether a particular article falls within heading 9505: “[C]lassification as a ‘festive article’ under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article [be] used or displayed principally during that festive occasion.”
Christmas and Halloween are recognized holidays, and a decorated Christmas tree and Jack-o-lantern are recognizable symbols of those holidays. See Headquarters Ruling Letter (HQ) 966616, dated March 3, 2004 (Christmas tree), and see HQ 961521, dated February 9, 1999 (Jack-O-Lantern). Thus, the snowman and Christmas tree swizzle sticks appear to satisfy the criteria for coverage in heading 9505, HTSUS, as set forth in Michael Simon, Park B. Smith, and Midwest. We have yet to rule that a snowman, without accessories like a Santa hat or sprig of holly, is a recognizable symbol of Christmas.
Note 1(v) to Chapter 95, HTSUS, however, excludes, in pertinent part, “[t]ableware, kitchenware… and similar articles having a utilitarian function (classified according to their constituent material)”.
The ENs to Chapter 95, HTSUS, elaborate, in relevant part, that heading 9505, “…also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware…” Accordingly, while the drink stirrers contain a festive decoration, they do not fit the terms of heading 9505, HTSUS if they have utilitarian functions.
CBP has consistently held that drink stirrers fit the terms of heading 7013, HTSUS, as glassware of a kind used for table purposes. See Headquarters Ruling Letter (HQ) 950213, dated December 4, 1991; New York Ruling Letter (NY) 880042, dated November 18, 1992; NY C88586, dated June 8, 1998; and NY N026444, dated May 14, 2008. Thus, even though they contain a holiday decoration, the subject drink stirrers are excluded from classification in Chapter 95, HTSUS, by virtue of Note 1(v) to Chapter 95, HTSUS.
Classification of the subject merchandise within heading 7013, HTSUS, implicates GRI 6, which states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
Classification under subheading 7013.49, HTSUS, or subheading 7013.99, HTSUS, is governed by Additional U.S. Rule of Interpretation 1(a), which states the following:
[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.
Accordingly, if the subject glassware is for principal use as kitchen or table glassware, then it will be classifiable under subheading 7013.49, HTSUS, which provides for other glassware of a kind used for table or kitchen purposes. If the subject drink stirrers are for principal use as decorative items, then they are classifiable under subheading 7013.99, HTSUS, which provides for other glassware.
In HQ 950213, we determined that similar drink stirrers were principally for decorative use and thus classifiable under subheading 7013.99, HTSUS. The drink stirrers in that case ranged in length from 5 and 5/8 inches to approximately six and a half inches, and respectively possessed a snowman and golf ball with a pin decoration at the top. Both drink stirrers featured a pointed bottom, as opposed to the rounded bottom of those subject to the instant case. In determining that the drink stirrers subject to HQ 950213 were classifiable in subheading 7013.99, HTSUS, we reasoned that the relatively short length and pointed tips made the merchandise more suitable for display in a plant or gift basket than for stirring drinks.
The subject drink stirrers are longer than the merchandise discussed in HQ 950213 and also possess rounded ends, making them significantly less suitable for display in items like plants and gift baskets. However, the detailed decorations located on the top of the stirrers indicate a principal use to decorate drinking glasses rather than to stir the contents within them. More importantly, the fragile nature of the glass stems indicates that the stirrers are used principally to decorate glasses at the table setting, rather than to vigorously stir drinks. Consequently, we find that the subject drink stirrers are properly classifiable under subheading 7013.99, HTSUS, as other glassware. See also NY 889942, NY C88586 and NY N026444.
HOLDING:
The subject drink stirrers are excluded from classification in Chapter 95, HTSUS, by Note 1(v) to Chapter 95. By application of GRI 1, they are classified in heading 7013, HTSUS. By application of GRI 1 and GRI 6, the subject drink stirrers are classified in accordance with their value in either subheading 7013.99.40, HTSUS, or subheading 7013.99.50, HTSUS, which provide for: “[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Other: valued not over $0.30 each [or] valued over $0.30 but not over $3 each”.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch