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HQ 087701


May 20, 1991

CLA-2 CO:R:C:F 087701 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

District Director of Customs
909 First Avenue, Room 2039
Seattle, Washington 98174

RE: Internal Advice Request No. 39/90
Colored Glass Balls With Wire Stems

Dear Sir:

This request for Internal Advice was initiated by a letter dated January 15, 1990, from the law firm of Stein, Shostak, Shostak & O'Hara on behalf of Direct Export Company, Inc.

FACTS:

The merchandise involved consists of glass balls made of thin blown glass which come in sizes ranging from 15 millimeters to 50 millimeters in diameter. Attached to the end of each glass ball is a foil wrapped wire stem measuring approximately 5 inches in length. These balls come in a variety of colors, including gold, red, green, and silver. In addition the balls are available in an iridescent salmon pink, soft pale green and mauve color. The foil wrapping of the wire matches the color of the ball except for the pale green, salmon and mauve colored balls which always have a silver wrapping. These balls are imported in bunches of 4 to 12 depending on their size; they are held together by a rubber band.

Counsel for the inquirer states that this merchandise is sold to retail florists for use as parts or accessories in a variety of Christmas floral arrangements during the Christmas season. The colored glass balls are primarily used to decorate floral arrangements, plants, Christmas wreaths, garlands, candle rings, small Christmas trees, corsages, and in a variety of Christmas packaging.

The inquirer has informed us that the most popular colors are gold, silver, and red which consist of 80 percent of his sales. Further, since home decor has changed so much to pastel colors, he offers the glass balls in mauve, blue, burgundy, emerald green, and peach. However, these colors are said to amount to only about 15 to 20 percent of the combined sales.

It is your view that this merchandise is classifiable under subheading 7013.99.4000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, other, valued not over $0.30 each.

Counsel for the inquirer suggests that the merchandise is classifiable in heading 9505, HTSUSA, as festive articles, or, in the alternative, in heading 7020, HTSUSA, as other articles of glass.

ISSUE:

Whether the colored balls qualify as festive articles in heading 9505.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the scope of the headings. The Explanatory Note to heading 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.

Articles classifiable as festive articles in heading 9505 tend to serve no other function than decoration.

Here, the items at issue are decorative. Moreover, as with Christmas stockings, yule logs, and nativity scenes, (named exemplars of heading 9505), thin blown colored glass balls with wire stems are traditionally used at Christmas festivities. Accordingly, they are classifiable as festive articles in heading 9505.

Subheading 9505.10, HTSUSA, provides for articles for Christmas festivities. The items at issue are classifiable within this provision. We now turn our attention to their proper classification at the eight-digit subheading level.

Subheadings 9505.10.10, 9505.10.15, and 9505.10.25 cover Christmas ornaments of glass, wood, and other, respectively. To qualify as a Christmas ornament, Customs requires that the following three criteria be met:

1. that the item is advertised and sold as a Christmas tree ornament;

2. that there is some method, generally a loop attached to the top, to hang the item on a tree; and

3. that the item is not too big or too heavy to be hung or attached to a tree.

(See Headquarters Ruling Letter 084606 of July 31, 1989.)

Counsel for the inquirer has submitted advertising material which portrays Christmas trees having these colored glass balls attached thereto. However, other advertising material portrays these glass balls as being attached to floral arrangements. In fact, counsel for the inquirer admits that these colored glass balls are used primarily to decorate floral arrangements, plants, Christmas wreaths, garlands, candle rings, small Christmas trees, corsages and in a variety of Christmas packaging. Accordingly, the colored balls do not qualify as Christmas ornaments for tariff purposes.

Subheading 9505.10.30, HTSUSA, covers nativity scenes and figures thereof. The items at issue neither qualify as nativity scenes nor as parts thereof. Subheading 9505.10.40, HTSUSA, covers other Christmas articles of plastics. Subheading 9505.10.50, HTSUSA, provides for other Christmas articles constructed of materials other than plastics. As the colored balls are constructed of glass, they are classifiable in subheading 9505.10.50.

HOLDING:

The colored balls at issue are traditionally used at Christmas; hence, they qualify as festive articles in heading 9505. The items at issue are classifiable in subheading 9505.10.5000, HTSUSA, 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: other (than Christmas ornaments), other (than of plastics). The applicable rate of duty is 5.8 percent ad valorem.

You should inform the importer of this ruling.

Sincerely,

John Durant, Director
Commercial Rulings Division

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