CLA-2 CO:R:C:F 089308 SLR
Mr. Stanley Geller
President, Easter Unlimited
80 Voice Road
Carle Place, NY 11514
RE: Modification of Pre-Classification Review (PC) #835839;
"Happy Easter Grass"; Cellophane Gift Wrapping.
Dear Mr. Geller:
It has been brought to our attention that several items
covered by PC #835839 were misclassified. The following
represents their proper classification.
FACTS:
This modification involves two items: "Happy Easter Grass"
and cellophane gift wrapping. The "Happy Easter Grass" is
assumed to be made of synthetic strips, measuring not over 5 mm
in width. It is available in green, yellow, or pink and is
imported in various size packages. Item numbers 1200, 1201,
and 1203 are presently at issue. Customs earlier classified the
"Happy Easter Grass" in subheading 3926.90.9050, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for other articles of plastics, other, dutiable at 5.3
percent ad valorem.
The cellophane gift wrapping, item 1206, is in the form of
sheets, on rolls. It too was classified in subheading
3926.90.9050, HTSUSA.
ISSUE:
What is the proper classification of the above-described
items under the HTSUSA?
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
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according to the terms of the headings and any relative section
or chapter notes.
The Explanatory Notes to the Harmonized Tariff Schedule
represent the official interpretation of the tariff at the
international level. Although not legally binding, they offer
guidance in understanding the scope of the tariff's provisions.
Heading 3926, HTSUSA, provides, in pertinent part, for
"[o]ther articles of plastics." Before an item can be classified
in heading 3926, however, we must be satisfied that none of the
relative section or chapter notes mandates a contrary
classification. The Explanatory Notes must be considered as
well. Lastly, as heading 3926 is considered a "basket
provision," we must ensure that no other heading within the
Nomenclature provides a more specific description of the article
in question.
"Happy Easter Grass"
Heading 9505, HTSUSA, provides, in pertinent part, for
"[f]estive, carnival or other entertainment articles." 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.
* * *
Items classifiable as festive articles in heading 9505 tend to
serve no other purpose than decoration.
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Although the subject item is arguably festive, in this case,
no substantial evidence has been presented that would convince
this office that the principal use of the item is as a festive
article. On the contrary, we note that plastic strips of this
style, color, and consistency are available year-round for a wide
variety of uses. Consequently, classification of the "Happy
Easter Grass" must be found elsewhere.
Heading 3920, HTSUSA, provides for "[o]ther plates,
sheets, film, foil and strip, of plastics, noncellular and not
reinforced, laminated, supported or similarly combined with
other materials." As the "Happy Easter Grass" is made of
non-cellular, non-reinforced strips of plastic, this heading, at
first glance, appears to describe the subject product. The
Explanatory Note to heading 3920, however, indicates that the
heading "excludes strip of apparent width not exceeding 5mm
(Chapter 54)." The width of the plastic strips currently under
examination does not exceed 5 mm. The "Happy Easter Grass,"
therefore, is classifiable in Chapter 54. (Resort to
heading 3926 is unwarranted as the note directs us to the
product's probable classification.)
Heading 5404, HTSUSA, provides, in pertinent part, for
"strip and the like...of synthetic textile materials of an
apparent width not exceeding 5 mm." The Explanatory Note to
heading 5404 indicates that "[t]he strips of this heading are
flat, of a width not exceeding 5 mm, either produced as such by
extrusion or cut from wider strips or from sheets." The Note
also indicates that the products of the heading are "generally in
long lengths, but remain classified here even if cut into short
lengths...." As the "Happy Easter Grass" fits this description,
it is classifiable in heading 5404, HTSUSA.
Cellophane Gift Wrapping
As indicated earlier, heading 3920, HTSUSA, provides for
"[o]ther plates, sheets, film, foil and strip, of plastics,
non-cellular and not reinforced, laminated, supported
or similarly combined with other materials." This
heading accurately describes the cellophane wrapping paper.
Moreover, heading 3920, HTSUSA, as opposed to heading 3926,
HTSUSA, provides the more specific description of the product.
Consequently, the cellophane wrapping paper is properly
classifiable in heading 3920, HTSUSA.
HOLDING:
The "Happy Easter Grass" is classifiable in subheading
5404.90.0000, HTSUSA, which provides for synthetic monofilament
of 67 decitex or more and of which no cross-sectional dimension
exceeds 1 mm; strip and the like (for example, artificial straw)
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of synthetic textile materials of an apparent width not exceeding
5mm; other (than monofilament). The applicable rate of duty
is 5.1 percent ad valorem.
The cellophane gift wrapping is classifiable in subheading
3920.71.0000, HTSUSA, which provides for other plates, sheets,
film, foil and strip, of plastics, noncellular and not
reinforced, laminated, supported or similarly combined with
other materials: of cellulose or its chemical derivatives: of
regenerated cellulose. The applicable rate of duty is 6.2
percent ad valorem.
This notice to you should be considered a modification of
PC #835839 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to PC #835839 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
company's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type,
PC #835839 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 company 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