CLA-2 OT:RR:CTF:TCM H064916 TNA
Port Director, Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Application for Further Review of Protest No: 2704-08-103074; Snowman Bell Wreaths
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 2704-08-103074, timely filed on September 2, 2008, on behalf of Wal-Mart Stores, Inc (“Wal-Mart”). The AFR concerns the classification of a bell wreath under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is called “BW 11IN Snowman Bell Wreath” on its commercial invoice and is also referred to as a “Christmas Bell Wreath.” It consists of an eleven inch wreath made up almost exclusively of base metal jingle bells and has a small curly ribbon on top. The wreath comes in four different color combinations: red, white and silver; purple, blue and green; light blue, white and silver; and blue, green and red. The wreath is meant to be hung on a home’s front door; when the door is opened, the bells chime. Although our files contain pictures of the subject merchandise, no samples were received or examined by our office.
On August 31, 2007, the subject merchandise was entered at the Long Beach Seaport under subheading 8306.10.00, HTSUS, which provides for bells, gongs and the like. U.S. Customs and Border Protection (“CBP”) liquidated the entry on July 11, 2008 as entered. On September 2, 2008, Wal-Mart filed a Protest with Application for Further Review (“AFR”), arguing that the subject merchandise is properly classified in subheading 8306.29.00, HTSUS, as statuettes and other ornaments.
ISSUE:
Whether the Snowman Bell Wreath should be classified under subheading 8306.10.00, HTSUS, as bells, gongs, and the like; under subheading 8306.29.00, HTSUS, as a base metal statuette or ornament; or under subheading 9505.10.25, HTSUS, as a Christmas ornament.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2704-08-103074 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon by the Commissioner of Customs or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Specifically, Wal-Mart argues that based on its post-entry review, the subject merchandise should have been classified differently because it is an ornamental item incorporating bells and is designed essentially for decorative purposes.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2008 HTSUS headings under consideration are the following:
8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:
8306.10.00 Bells, gongs and the like, and parts thereof
Statuettes and other ornaments, and parts thereof:…
8306.29.00 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:
Christmas ornaments:
Other:
9505.10.25 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 8306 states, in pertinent part, the following:
(A) BELLS, GONGS AND THE LIKE, NON ELECTRIC
This group covers non-electric bells and gongs of base metal. It includes bells for places of religious worship, schools, public buildings, factories, ships, fire-engines, etc.; door bells; table bells; hand-bells; cattle or other animal bells; bells for bicycles, scooters or perambulators; bells for fishing tackle (without the addition of external clamps, clips or other mounting devices); door chimes, table gongs, etc.; decorated bells such as those for tourist souvenirs.
This heading also covers metallic parts such as clappers, handles and domes (including those suitable equally for electric or other types of bells). It also includes metallic buttons and turn keys for non electric table or door bells….
(B) STATUETTES AND OTHER ORNAMENTS
This group comprises a wide range of ornaments of base metal (whether or not incorporating subsidiary non metallic parts) of a kind designed essentially for decoration, e.g., in homes, offices, assembly rooms, places of religious worship, gardens.
It should be noted that the group does not include articles of more specific headings of the Nomenclature, even if those articles are suited by their nature or finish as ornaments.
The group covers articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to contain or support other decorative articles or to add to their decorative effect, for example:
(1) Busts, statuettes and other decorative figures; ornaments (including those forming parts of clock sets) for mantelpieces, shelves, etc. (animals, symbolic or allegorical figures, etc.); sporting or art trophies (cups, etc.); wall ornaments incorporating fittings for hanging (plaques, trays, plates, medallions other than those for personal adornment); artificial flowers, rosettes and similar ornamental goods of cast or forged metal (usually of wrought iron); knick knacks for shelves or domestic display cabinets.
(2) Articles for religious use such as reliquaries, chalices, ciboriums, monstrances or crucifixes.
(3) Table bowls, vases, pots, jardinières (including those of cloisonné enamel).
* * * * * * * * * * * *
As an initial matter, we consider classification in heading 9505, HTSUS, as festive articles. Note 1(l) to Chapter 95, however, states that “this chapter does not cover bells, gongs or the like of heading 8306.” If the merchandise is classifiable in heading 8306, HTSUS, then it is excluded from heading 9505, HTSUS, by Note 1(l).
EN 83.06 states that subheading 8306.10, HTSUS, covers non-electric bells and gongs of base metal. The subject merchandise consists principally of non-electric jingle bells made out of base metal. Subheading 8306.10, HTSUS, therefore provides for the subject merchandise eo nomine. CBP has consistently classified articles of bells, including items of jingle bells, in subheading 8306.10.00, HTSUS. See HQ H055383, dated January 4, 2010 (classifying strings of jingle bells meant to be hung on a door under subheading 8306.10.00, HTSUS); NY G85029, dated November 30, 2000 (classifying “Trim-a-Home Bell Ornaments” that consisted of jingle bells mounted on steel wire to form a wreath in subheading 8306.10.00, HTSUS); NY L86302, dated July 18, 2005; NY I83301, dated June 19, 2002; NY E86535, dated September 8, 1999; NY 810536, dated June 1, 1995; NY N022642, dated February 6, 2008; NY M80871, dated March 16, 2006; NY L84397, dated May 2, 2005; NY L82383, dated February 16, 2005.
Wal-Mart argues for classification in subheading 8306.29.00, HTSUS, as other statuettes and other ornaments, and parts thereof. Part B of EN 83.06, however, states that while subheading 8306.29, HTSUS, comprises a wide range of ornaments of base metal, it does not include articles of more specific headings, even if the articles in question “are suited by their nature or finish as ornaments.” Subheading 8306.10.00, HTSUS, is a more specific subheading for the subject merchandise. As a result, Wal-Mart’s Christmas Bell Wreaths are classified under subheading 8306.10.00, as “bells, gongs, and the like.”
HOLDING:
By application of GRI 1, the Snowman Bell Wreath is classified in heading 8306, HTSUS, specifically under subheading 8306.10.00, HTSUS, which provides for: “bells, gongs, and the like.” As such, the applicable duty rate at the time of entry was 5.8% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division