HQ 089372

January 29, 1992

CLA-2 CO:R:C:F 089372 STB

CATEGORY: Classification

TARIFF NO.: 6810.99.0000

Mr. Guy Robbins

Tuesday Morning Inc.

14621 Inwood Road

Dallas, Texas 75244

RE: 45mm Water Globe on Swan; Santa Figure Inside Globe

Dear Mr. Robbins:

This letter is in response to your inquiry of May 9, 1991,

regarding the tariff classification of an item which consists of

the figure of a swan, on top of which rests a water globe with a

Santa figure inside the globe. A sample was submitted with your

inquiry.

FACTS:

The item in question consists of a 45 mm water globe which

rests on the top of a much larger swan figure. A Santa Claus

figure is located inside the globe. Your \"style number\" for the

item is UF90712A. Our New York laboratory examined your sample

and determined that the swan figure is made of stone (dolomite)

agglomerated with plastic materials.

You stated in your inquiry that the item was entered under

subheading 9505.10.2500, Harmonized Tariff Schedule of the United

States Annotated (HTSUSA), the provision for Christmas ornaments,

eligible for duty-free treatment. You further stated that you

were then notified by Customs that the item was being liquidated

under subheading 7013.99.5500, HTSUSA, the provision for

glassware for indoor decoration, dutiable at a rate of 30% ad

valorem.

ISSUE:

What is the proper classification of the subject

merchandise?

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LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with

the General Rules of Interpretation (GRI\'s). The systematic

detail of the harmonized system is such that virtually all goods

are classified by application of GRI 1, that is, 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\'s may

then be applied.

Since you suggest classification under subheading

9505.10.2500, HTSUSA, the provision for Christmas ornaments, we

will discuss that provision first. The Explanatory Notes, which

represent the official interpretation of the tariff at the

international level, offer guidance in understanding the scope of

the headings. Explanatory Note (A)(2) to heading 95.05, HTSUSA,

stresses that this chapter applies to articles \"traditionally

used at Christmas festivities\" (emphasis added). Christmas tree

ornaments are one type of item that is traditionally associated

with Christmas. Customs has ruled that if an item qualifies as

a Christmas tree ornament it is not necessary that the item

itself demonstrate a singularly Christmas motif or be an item

that would otherwise be traditionally associated with Christmas.

See, for example, Headquarters Ruling Letter (HRL) 083330, dated

April 10, 1990, in which small china dolls, dressed in Victorian

outfits and designed to be hung from Christmas trees, were

classified in heading 9505, HTSUSA, as Christmas tree ornaments.

To be classified as a Christmas tree ornament, Customs

requires that the following three criteria be met: (1) that the

item is marketed and sold as a Christmas tree ornament; (2) that

there is some method, generally a loop attached to the top, to

secure or 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. The

subject merchandise does not satisfy any of these criteria.

Having failed the Christmas tree ornament test, we will

consider whether this article could possibly be classified

elsewhere in heading 9505 as a festive article. Customs has

issued numerous rulings in which we have stated that water

globes, regardless of the motif represented by the figures inside

the globe, are not classifiable in heading 9505. Water globes,

as a class or kind of merchandise, are not \"traditionally used

at\", or associated with Christmas or any other festive occasion.

They are sold year-round and display a wide variety of motifs.

Additionally, water globes often serve a utilitarian purpose as

paperweights and are commonly considered to be collectors\' items

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regardless of whether the motif is holiday related. In your May

9 letter, you expressed an interest in reviewing prior Customs

rulings concerning the water globe/festive article distinction.

In response, we have inclosed copies of two such rulings,

Headquarters Ruling Letter (HRL) 088067, dated February 11, 1991,

and HRL 087878, dated May 20, 1991.

The fact that this particular item consists of a water globe

resting on the back of a swan serves to decrease the Christmas

nature of the motif. If, because of the swan, this figure were

to be classified as a statuette or figurine, rather than as a

water globe, classification in heading 9505 would still not be

appropriate. Statuettes and figurines are also used and sold

year-round for a variety of functions and are not traditionally

used at any particular festive occasion.

This item is a composite good, in a tariff sense, in that it

consists of the water globe, the figures inside, and the swan

figure. As a composite good, the article is not classifiable

under GRI 1 or 2, so reference must be made to GRI 3. GRI 3(b)

provides that composite goods constructed of different components

shall be classified as if they consisted of the component which

gives them their essential character. The Explanatory Notes to

GRI 3(b) indicate that essential character may be determined by

considering \"the nature of the material or component, its bulk,

quantity, weight or value, or by the role of a constituent

material in relation to the use of the goods.

It is our determination that the essential character of

the item is provided by the swan figure which dominates the

whole in terms of weight, bulk and visual effect. The swan

figure, being constructed of stone (dolomite) agglomerated with

plastic materials, (artificial stone) is not provided for in any

provision relating to statuettes or figurines. The

classification of this item, therefore, is based on the material

forming the construction of the swan.

HOLDING:

The swan figure with 45 mm water globe, your style number

UF90712A, is classified in subheading 6810.99.0000, HTSUSA, the

provision for articles of cement, concrete, or artificial stone,

other, other. The applicable duty rate is 4.9% ad valorem.

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This ruling will apply to prospective transactions only and

will not modify the previous denial of Protest No. 5501-91-

100087, which is a final administrative decision and binding on

both the importer and Customs for the entry covered by that

protest under the principles of San Francisco Newspaper Printing

Co. v. United States, 9 CIT 517 (1985).

Sincerely,

John Durant, Director

Commercial Rulings Division