CLA-2 OT:RR:CTF:TCM H256503 CkG
TARIFF NO: 3926.40.00
Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd., Ste 1400 Long Beach, CA 90802
Attn: Kristen Tessenear, Import Specialist
RE: Application for Further Review of Protest No. 2704-14-100470; classification of
artificial wreaths
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 2704-14-100470, filed on behalf of Target General Merchandise, Inc. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of one entry of artificial wreaths in heading 3926, HTSUS, as other articles of plastic.
The subject merchandise was entered on October 18, 2012, under subheading
3926.40.00, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles.” The entry was liquidated as entered on February 15, 2014, in subheading 3926.40.00, HTSUS. Protestant is requesting reclassification of the artificial wreaths as articles for Christmas festivities under subheading 9505.10.25, HTSUS.
FACTS:
The subject merchandise consists of three artificial wreaths that measure approximately 16” in diameter and are comprised of colored plastic balls attached by wire to steel wire circular frames. In each plastic ball is a hole with a wire protruding from it. This wiring is wound around the steel frame, securing each ball to the frame and securing the balls to each other. Style DPCI 051-12-1906, 16” Multi Shatterproof Wreath, has a facing consisting of blue, purple, red, green and gold plastic balls. Style DPCI 051-12-1907, 16” Red Shatterproof Wreath, has a facing of only red plastic balls. Style DPCI 051-12-1933, 16” Red & Green Shatterproof Wreath, has a facing of red, green and white plastic balls. According to the commercial invoice, the plastic balls comprise 80% of the material of each wreath.
ISSUE:
Whether the subject artificial wreaths are classified as other articles of plastic in heading 3926, HTSUS, or as festive articles in heading 9505, HTSUS.
LAW AND ANALYSIS:
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 of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-14-100470 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are as follows:
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:
7217: Wire of iron or nonalloy steel
9505: Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
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Note 2 to Chapter 39 provides, in pertinent part:
2. - This Chapter does not cover:
(y) Articles of Chapter 95 (for example, toys, games, sports requisites); or
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The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The ENs to heading 9505, HTSUS, state, in relevant part, 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) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags). (2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
* * * *
Protestant claims classification in subheading 9505.10.25, HTSUS, which provides for: “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.” If the article is classified in heading 9505, HTSUS, it is excluded from Chapter 39 by operation of Note 2(y) to Chapter 39.
In Midwest of Cannon Falls, Inc. v. United States, (Midwest) 122 F.3d 1423, 1429 (Fed. Cir. 1997), the Court of Appeals for the Federal Circuit (CAFC) held that classification as a “festive article” under Chapter 95 requires that the article satisfy two criteria: (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, the 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.” Michael Simon Design, Inc. v. United States, (Michael Simon) 452 F. Supp 2d. 1316, 1323 (Ct. Int’l Trade 2006) (citing Park B. Smith, Ltd. v. United States, (25 Ct. Int’l Trade 506, 509 (2001)).
In Michael Simon, the Court of International Trade applied a two-prong test for determining whether a particular article is classifiable as a good of heading 9505, HTSUS: “[C]lassification as a ‘festive article’ under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article [be] used or displayed principally during that festive occasion.” Additionally, the Court stated that the 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.”
The articles are described in the submission as “Christmas ornament tree ball wreaths”. A wreath alone, however, is not a recognized symbol of Christmas. CBP’s position with respect to the classification of artificial wreaths as festive articles is laid out in HQ 950999, dated April 16, 1992, in which CBP held that “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)]….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.” See also HQ 951520, dated October 31, 1992.
Thus, a wreath intended for display during the Christmas season is regarded as a festive article if it consists of foliage commonly associated with Christmas. It can further be decorated with traditional Christmas decorations. By extension, a wreath lacking any such decorative features traditionally associated with Christmas, such as the articles at issue herein, will not be considered festive articles for the purposes of heading 9505, HTSUS. CBP has ruled in numerous instances that wreaths lacking the features discussed above, in particular foliage commonly and traditional associated with Christmas such as poinsettas, holly, mistletoe, etc., or which is otherwise not so closely associated with Christmas that it would not be used on occasions other than the Christmas season, are not classifiable as festive articles in heading 9505, HTSUS. See e.g., HQ 962567, dated March 31, 2000; NY N242046, dated May 31, 2013; NY K88217, dated August 13, 2004 ; NY N014433, dated August 14, 2007; NY K88459, dated August 13, 2004; NY K85693, dated May 19, 2004 ; NY N235319, dated December 6, 2012. Hence, when examining the instant articles, it must be evident that they are closely associated or used with the particular festival of Christmas, and not just a seasonal decoration.
In the instant case, the articles at issue are not adorned with any traditional Christmas motifs or foliage such as Santa, Christmas presents, poinsettas, pine cones, mistletoe, holly leaves, holly berries, laurel leaves, or evergreen branches. They further lack leaves, roots, branches or any other identifiable foliage of any kind. Although CBP has recognized Christmas tree ornaments as a Christmas motif for the purposes of heading 9505, HTSUS, the instant articles do not resemble the ball ornaments typically hung on Christmas trees, which feature a crown and a hook at the top. Instead, the instant wreaths are composed of generic colored balls. The physical appearance of generic colored balls is not intrinsically linked to Christmas, nor has CBP recognized colors themselves as festive motifs. See e.g., HQ H030207, dated July 31, 2009, in which CBP rejected the importer’s assertion that color alone qualified a color-changing angel figurine as a Christmas article. In HQ H030207, CBP stated regarding Christmas: “the holiday does not have a monopoly on the colors red, green, white and blue.” Thus, the instant articles do not even clearly resemble a traditional wreath, decorated or not, and they have no particular association with Christmas.
With respect to the second prong of the Michael Simon test, we note that the wreaths are marketed and advertised as Christmas decorations. However, it is our view that the instant articles do not immediately stand out as items that would only be seen at Christmas time. As noted above, not every article shaped like a wreath will automatically be considered a festive article for the purposes of heading 9505, HTSUS. As the instant wreaths lack any specific decorative features tying them to the Christmas holiday, they could be easily used as a seasonal decoration during the winter and even at other times of the year.
Protestant cites to two rulings in support of classification in heading 9505, HTSUS: NY N264506, dated May 15, 2015, and NY N235319, dated Dec. 6, 2012. In NY N264506 and NY N235319, CBP classified artificial wreaths decorated with artificial foliage and Christmas ball ornaments in heading 9505, HTSUS. From the description of the articles, we cannot determine if the “Christmas ball ornaments” had the appearance of traditional Christmas tree ornaments or whether they were, like the articles at issue, merely colored plastic balls. All of these articles, however, featured artificial foliage commonly associated with Christmas in addition to the ball ornaments. As noted above, we do not find that the colored balls on the instant wreaths sufficiently resemble Christmas tree ornaments so as to link the wreaths specifically to the Christmas holiday.
As the instant wreaths are not festive articles of heading 9505, HTSUS, Note 2(y)
to Chapter 39 does not preclude their classification in heading 3926, HTSUS. However, because the wreaths also incorporate a steel wire frame, they are potentially described by heading 7217, HTSUS. As the ball wreaths are partly described by more than one heading, they are not classifiable at GRI 1. GRI 3(b) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The “essential character” of an article is “that which is indispensable to the
structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.”
We find that the essential character of the instant articles is imparted by the plastic balls, which comprise the vast majority of the bulk and weight of the wreath and provide the greatest visual impact. As the goods are decorative in nature, the visual impact in particular weighs most heavily in favor of the plastic balls imparting the essential character to the wreaths. Thus, as articles of plastic not elsewhere specified, the instant wreaths are classified in heading 3926, HTSUS.
HOLDING:
By application of GRIs 1, 3 and 6, the artificial wreath styles DPCI 051-12-1906,
DPCI 051-12-1907, and DPCI 051-12-1933 are classified in heading 3926, HTSUS,
specifically subheading 3926.40.00, HTSUS, which provides for “Other articles of
plastics and articles of other materials of headings 3901 to 3914: Statuettes and other
ornamental articles.” The 2014 column one, general rate of duty is 5.3% ad valorem.
You are instructed to deny the protest in full.
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 Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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