CLA-2 CO:R:C:F 951520 LPF
Mr. Marc S. Greenberg
Vice President
American Shipping Company, Inc.
600 Sylvan Avenue - P.O. Box 1486
Englewood Cliffs, NJ 07632
RE: Modification of NYRL 838996; Christmas wreath in 9505.10.40,
HTSUSA; Festive article, for Christmas festivities, other;
Not 9505.10.25 Christmas ornament.
Dear Mr. Greenberg:
In New York Ruling Letter (NYRL) 838996 issued April 10,
1989, a Christmas wreath, from Thailand, was classified in
subheading 9505.10.25, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Festive, carnival or other
entertainment articles,...: Articles for Christmas festivities
and parts and accessories thereof: Christmas ornaments: Other:
Other." We have reviewed that ruling and have found it to be
partially in error. The correct classification is as follows.
FACTS:
The merchandise at issue is a Christmas wreath measuring
approximately eighteen inches in diameter. It consists of dried
and plastic pine cones, plastic flocked poinsettias, plastic red
berries and plastic evergreen and holly-type leaves, all affixed
to a plastic circular base.
ISSUE:
Whether the Christmas wreath is classifiable in subheading
9505.10.25 as festive articles, articles for Christmas
festivities, Christmas ornaments, or in subheading 9505.10.40 as
festive articles, articles for Christmas festivities, other, of
plastics.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported 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. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 indicate 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....
* * *
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
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3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
First, the wreath is made of non-durable material. Customs
will consider an article, such as the wreath, to be made of non-
durable material since it is not designed for sustained wear and
tear, nor is it purchased because of its extreme worth or value
(as would be the case with a decorative, yet costly, piece of art
or crystal).
Next, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the wreath serves no
useful function besides its role as a decoration.
Finally, when examining the wreath, as a whole, it is
evident that the article is traditionally associated or used with
the particular festival of Christmas. In Headquarters' Ruling
Letter (HRL) 950999, issued April 16, 1992, various wreaths and
garlands, with artificial foliage, were classified in 9505.10.40
as festive articles for Christmas festivities. Following is the
language from HRL 950999 wherein Customs explained which types of
garlands, wreaths, etc. would be classifiable in 9505.10 as
festive articles for Christmas festivities.
Those artificial foliage items which qualify as
Christmas articles of subheading 9505.10 include
wreaths, garlands, candle rings, centerpieces --
complete articles -- made up of foliage commonly
and traditionally associated with Christmas [i.e.,
artificial poinsettias, pine cones, pine needle
leaves, evergreen branches, holly berries, holly
leaves, laurel leaves, or mistletoe (singly or
combination thereof)]. (This largely restates
Customs position under the TSUS). These articles
can be further decorated with plastic sleighs,
miniature Santas, glass balls, ribbon, etc.
Stylized/modern versions of Christmas wreaths,
garlands, etc. (i.e., those articles decorated with
neon poinsettias, mauve glass balls, etc.) also
qualify as festive.
At the present time, based on the information before
us, there is no other artificial foliage traditionally
associated with any other holiday. Hence, only
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Christmas foliage of the type described above is
classifiable in heading 9505. The rest is classifiable
in Chapter 67.
Note that picks, sprigs, sprays, swags, branches, --
incomplete articles -- no matter what they are made of
or what flower they represent, are all classifiable in
Chapter 67 -- the only exception being mistletoe sprays
which are classifiable in 9505.10.
It is Customs position that the artificial wreath at issue
in this case is of the type described in HRL 950999. The instant
wreath, therefore, is classifiable in 9505.10.
As for the proper classification of the wreath 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 looks
to the following three criteria:
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.
The wreath does not meet these criteria. Consequently, it
is not classifiable as a Christmas ornament.
Subheading 9505.10.40, covers other Christmas articles of
plastics, while subheading 9505.10.50, covers other Christmas
articles made of other materials. As the wreath is composed of
plastic, it is classifiable in subheading 9505.10.40.
HOLDING:
The wreath is classifiable in subheading 9505.10.40, HTSUSA,
as "Festive, carnival or other entertainment articles,...Articles
for Christmas festivities and parts and accessories thereof:
Other (than Christmas ornaments): Of plastics." The general
column one rate of duty is 8.4 percent ad valorem. We note that
the ruling being modified indicated a general column one rate of
duty of 5 percent ad valorem which, under subheading 9902.95.05,
was temporarily suspended until December 31, 1992. However, an
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article classified in 9505.10.40 is eligible for duty free
treatment under the Generalized System of Preferences (GSP)
provided it meets the requirements of General Note 3(c)(ii),
HTSUSA.
This notice should be considered a modification of NYRL
838996 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 838996 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, NYRL
838996 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division