OT:RR:CTF:CPMM H237646 KSG
Joseph Stinson
Liss Global, Inc.
7746 Dungan Road
Philadelphia, PA 19111
RE: NY N234156; tariff classification of artificial foliage in pots and baskets; snow berry pot and basket
Dear Mr. Stinson:
This ruling is in reference to your request for reconsideration of New York Ruling Letter (NY) N234156, dated October 11, 2012, regarding the classification of artificial foliage in a flower pot made of plaster under the Harmonized Tariff Schedule of the United States (HTSUS).
In NY N234156, U.S. Customs & Border Protection (CBP) classified the artificial foliage in a flower pot made of plaster under subheading 6702.10.20, HTSUS, which provides for “Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit: Of plastics: Assembled by binding with flexible materials such as wire, paper, textile materials, or foil, or by gluing or by similar methods.” You claim the merchandise should be classified at subheading 9505.10, HTSUS, the provision for festive articles.
We have reviewed NY N234156 and affirm it.
The Snow Berry Pot measures approximately 14” x 10”, and is composed of artificial pine sprigs, styrofoam snow berry sprigs with plastic stems, woven textile leaves and natural pine cones in a plaster flower pot. The foliage is decorated with tiny plastic beads that simulate snow.
The Snow Berry wall basket measures approximately 16” x 14” x 10”. It is composed of artificial foliage that also includes artificial pine sprigs, styrofoam snow berry sprigs with plastic stems and woven textile leaves and natural pine cones in a basket with a handle. The foliage is also decorated with tiny plastic beads that simulate snow.
The HTSUS headings under consideration are the following:
6702 Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit.
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.
Chapter 67, HTSUS, Note 1(e) excludes toys, sports equipment or carnival articles (chapter 95).
In Michael Simon Design, Inc. v. United States, 452 F. Supp 2d 1316 (Ct. Int’l Trade 2006), the court considered the classification of sweaters with holiday motifs as festive articles under heading 9505, HTSUS. The court applied a two-prong test for determining whether particular sweaters were festive articles or not. The two criteria are: 1) it must be closely associated with a festive occasion and 2) the article must be used or displayed principally during that festive occasion. Additionally, to qualify as festive articles, items must be closely associated with a festive occasion to the degree that the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.
We note Headquarters Ruling Letter (HQ) H256503, dated June 30, 2016, in which CBP classified artificial wreaths made of colored plastic balls that were blue, purple, red, green, and gold in heading 3926, HTSUS, and not in heading 9505, HTSUS. CBP stated in that case that a wreath alone is not a recognized symbol of Christmas and that a wreath lacking any decorative features traditionally associated with Christmas is not a festive article classified in heading 9505, HTSUS. You cited to NY I89773, dated January 27, 2003, to support your argument. We disagree. In that ruling, an artificial topiary tree was classified in heading 6702, HTSUS, not in heading 9505.
In applying GRI 1, we conclude that the imported articles were properly classified in heading 6702, HTSUS. Chapter note 1(e) of chapter 67 only excludes toys, sports equipment or carnival articles and not festive articles. However, regarding the artificial foliage in this case, there is no evidence that the articles would be displayed principally during Christmas or that its use during other time periods would be aberrant. In fact, these articles are associated with the entire winter season.
Accordingly, we conclude that NY N234156 is correct and it is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division