CLA-2 RR:CTF:TCM H241405 CKG
TARIFF NO: 7013.99.90
RE: Request for binding ruling on the classification of beaded glass trees
Michael Johnson
Mr. Christmas, Inc.
5841 E. Shelby Drive
Memphis, TN 38141
Dear Mr. Johnson,
This is in response to your request for a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of beaded glass trees. Your request, initially submitted to CBP’s National Commodity Specialist Division on October 22, 2012, was forwarded to this office on April 30, 2013. Samples have been forwarded with your request and will be returned.
FACTS:
The instant merchandise, item numbers 11305, 11306, 11307, 11308 and 11309, consists of tapered glass cones, imported in five colors (red, green, gold, silver and blue), measuring approximately 13.5”H x 3.5” W (at their widest diameter), with a rough exterior surface comprised of tiny glass beads. The cones are permanently affixed to glass-covered plastic stands that measure approximately 2.5” H x 3.5” in diameter. Each base houses a battery compartment that is activated by a three position (timer, off, on) slide switch located on the bottom of the base. When the slide switch is turned on, a string of LED lights inside the cone create a decorative effect on the glass. The lights can also operate via a six-hour timer. The cones are described as beaded glass trees, or beaded glass Christmas trees.
ISSUE:
Whether the glass cones are classified in heading 7013, HTSUS, as glassware of a kind used for indoor decoration, heading 9405, HTSUS, as lamps, or heading 9505, HTSUS, as festive (Christmas) articles.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.
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):
Other glassware:
7013.99: Other:
Other:
Other:
Valued over $3 each:
Other:
7013.99.90: Valued over $5 each…
* * * *
9405: Lamps and lighting fittings including searchlights and spotlights and parts thereof, not
elsewhere specified or included; illuminated signs, illuminated nameplates and the like,
having a permanently fixed light source, and parts thereof not elsewhere specified or
included:
9405.40: Other electric lamps and lighting fittings:
9405.40.80: Other. . .
* * * *
9505: Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
9505.10: Articles for Christmas festivities and parts and accessories thereof:
Other:
9505.10.50: Other. . .
* * * *
Note 1 to Chapter 70 provides, in pertinent part:
1. This chapter does not cover:…
(e) Lamps or lighting fittings, illuminated signs, illuminated name-plates or the like,
having a permanently fixed light source, or parts thereof of heading 9405;
(f) Toys, games, sports equipment, Christmas tree ornaments or other articles of chapter
95 (excluding glass eyes without mechanisms for dolls or for other articles of chapter
95);
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") 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. 35127-28 (Aug. 23, 1989).
The ENs to heading 9505, HTSUS, state, in relevant part, 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) 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). (2) 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.
* * * *
The requestor, Mr. Christmas, claims classification in subheading 9505.10.25, HTSUS, which provides for: “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.” If the article is classified in heading 9505, HTSUS, it is excluded from Chapter 70 by operation of Note 1(f) to Chapter 70.
In Midwest of Cannon Falls, Inc. v. United States, (Midwest) 122 F.3d 1423, 1429 (Fed. Cir. 1997), the Court of Appeals for the Federal Circuit (CAFC) held that classification 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 must be used or displayed principally during that festive occasion. Additionally, the items must 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.” Michael Simon Design, Inc. v. United States, (Michael Simon) 452 F. Supp 2d. 1316, 1323 (Ct. Int’l Trade 2006) (citing Park B. Smith, Ltd. v. United States, (25 Ct. Int’l Trade 506, 509 (2001)).
In Michael Simon, the Court of International Trade applied a two-prong test for determining whether a particular article is classifiable as a good of heading 9505, HTSUS: “[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.” Additionally, the Court stated that the items must 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.”
The article is described in the submission as a glass Christmas tree. CBP has held that the Christmas tree is a recognized symbol of Christmas. See NY B82906, dated April 18, 1997 (decorated evergreen); NY K80496, dated November 18, 2003 (decorated evergreen); NY N020841, dated December 14, 2007 (decorated evergreen); NY N035919, dated August 22, 2008 (decorated evergreen); NY N040606, dated October 9, 2008 (Christmas tree with gold star tree topper); NY N036637, dated September 5, 2008 (decorated Christmas tree with gold star tree topper); and NY N053423, dated March 10, 2009 (decorated Christmas tree with gold star tree topper). On the other hand, an undecorated evergreen tree is a symbol of the winter season that may be displayed all season long. See HQ H025865 January 15, 2009; HQ 958841, dated July 8, 1996; and NY N100955, dated May 4, 2010. Hence, when examining the instant articles, it must be evident that they are closely associated or used with the particular festival of Christmas, and not just a seasonal decoration.
While CBP has held that the Christmas tree is a recognizable symbol of Christmas, the instant merchandise does not contain any Christmas motifs. In the instant case, the glass cones are not adorned with any traditional Christmas tree decorations such as garland, tinsel, ornaments, a star topper, etc. In addition, they also lack leaves, roots, branches or any other identifiable tree features. Thus, the glass cones do not even clearly resemble an evergreen tree, decorated or not, and have no particular association with Christmas. Moreover, CBP has consistently held that lighted and non-lighted cone shapes are not uniquely associated with Christmas or automatically identifiable as Christmas trees. See e.g., NY N152896, dated March 28, 2011 (“Although you describe the product as a beaded tree it is not considered to be artificial foliage for tariff purposes because it does not resemble a natural tree or a conventional representation of foliage… although you state that the product will be marketed as a holiday decoration, there is nothing that limits the use of this decoration to any particular holiday. It does not contain any recognized festive motifs and it is suitable for year round display.”). See also, NY N073580, dated September 17, 2009; NY N035077, dated June 20, 2008; and NY L82351, dated February 25, 2005.
With respect to the second prong of the Michael Simon test, we note that the glass cones are marketed and advertised as Christmas decorations, and customer reviews of the product indicate that they are displayed at Christmas. However, it is our view that the instant articles do not immediately stand out as items that would only be seen at Christmas time. Rather, in our judgment, they could be easily used as a seasonal decoration during the winter. Thus, we believe that it would not be aberrant to display the glass cones as a decoration at times during the year other than Christmas.
As the glass cones are not festive articles of heading 9505, HTSUS, Note 1(f) to
Chapter 70 does not preclude their classification in heading 7013, HTSUS. However, because the glass cones also incorporate a string of LED lights, that lighting component is described in heading 9405, HTSUS, which provides for lamps and lighting fittings, not elsewhere specified or included. As the illuminated cones are partly described by more than one heading, they are not classifiable at GRI 1. GRI 3 states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
The two remaining headings under consideration, 9405, HTSUS, which
describes the lighting component and 7013, HTSUS, which describes the decorative
glass component, each describe part only of the materials used to make
the article in question. Therefore, the headings are considered equally specific and GRI
3(b) must be applied. GRI 3(b) states, in pertinent part, that: (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The “essential character” of an article is “that which is indispensable to the
structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.”
We find that the decorative glass component gives the glass cones their essential character. The glass provides the shape, weight, bulk, and visual impact of the articles and is likely to be the basis for the customer’s purchase. It appears that the lighting function simply enhances the already decorative nature of the article. Because the trees are not used for illumination and do not provide sufficient light to illuminate the surrounding area, the role of the lighting component is less significant and does not impart the essential character to the good. CBP has generally found that articles which provide light solely for its decorative effect are not classified in heading 9405, HTSUS, because the lighting component is not the article’s essential character. See e.g., HQ 956553, dated September 19, 1994; HQ 957907, dated November 8, 1995; NY B85718, dated June 23, 1997; NY N213896, dated May 9, 2012; and NY N226835, dated August 14, 2012.
The glass cones are articles of glass of a kind used for indoor decoration. As such, they are classified in heading 7013, HTSUS.
HOLDING:
By application of GRI 3(b), the subject beaded glass trees are provided for in heading 7013, HTSUS, specifically subheading 7013.99.90, HTSUS, which 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): Other glassware: Other: Other: Other: Valued over $3 each: Other: Valued over $5 each…” The 2013 general, column one rate of duty is 7.2% ad valorem.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
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,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch