CLA-2 OT:RR:CTF:TCM H097724 JPJ
Port Director
U.S. Customs and Border Protection
3150 Tchulahoma Road, Suite 1 Memphis, TN 38118
RE: Internal Advice; Classification of Ornament Picks
Dear Port Director:
This is in response to your memorandum dated March 8, 2010, forwarding a request for internal advice dated March 5, 2010, filed by Sandler, Travis & Rosenberg, P.A. on behalf of Teleflora LLC (“Teleflora”). The internal advice request concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of ornament picks. A Teleflora resource guide/catalog (Summer 2009) with pictures of various floral arrangements, including Teleflora’s “Have a Ball Bouquet” (item 09X400) and “Christmas Present Bouquet” (item 09X600) which display the ornament picks was submitted for our review.
FACTS:
The merchandise is ornament picks described as follows:
1. 11 gold ornament picks--6 gold and 5 matte gold
2. 8 red ornament picks
The descriptive literature provided by Teleflora indicates that the merchandise is included in two different bouquet accessory packs. In the accessory pack for the “Have a Ball Bouquet” (09X400AP 12 pack), each set includes 3 gold pinecones, 6 gold ornament picks and 5 matte gold ornament picks. Only the ornament picks are at issue. In the accessory pack for the “Christmas Present Bouquet” (09X600AP 12 pack), each set includes 2 ½ yards red velvet ribbon and 8 red ornament picks. Only the ornament picks are at issue. The descriptive literature illustrates that the picks will be inserted into floral arrangements as decorative features.
The record indicates that the merchandise was entered at the Port of Memphis on one entry, under subheading 9505.10.2500, HTSUS, which covers “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”. The invoice described the merchandise as “09X400AP Plastic Ornament Ball Set of 11” and “09X600AP Plastic Ornament Ball Set of 8”.
A Notice of Action Form (CBP Form) 29 dated October 30, 2009, proposing to rate advance the entry and re-classify the merchandise under subheading 3926.90.9980, HTSUS, was issued to Teleflora. Teleflora responded to the notice and submitted samples of the merchandise. In response, and after consulting with the National Import Specialist, CBP issued a Notice of Action Form (CBP Form) 29 dated December 11, 2009, rate advancing the entry and re-classifying the merchandise under subheading 3926.40.0000, HTSUS.
In a letter dated March 5, 2010, Teleflora requested internal advice pursuant to 19 C.F.R. 177.11. In said internal advice, the importer describes the merchandise as “Christmas ornament ball sets”, and states that they are properly classified as festive articles under heading 9505, HTSUS, and, more specifically as Christmas ornaments under subheading 9505.10.25, HTSUS.
ISSUE:
Whether the ornament picks are classified in heading 9505, HTSUS, as festive, carnival or other entertainment articles, or in heading 3926, HTSUS, as other articles of plastics.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 may then be applied.
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
* * *
Note 2 to Chapter 39, HTSUS, provides, in relevant part:
2. This chapter does not cover:
* * *
(y) Articles of chapter 95 (for example, toys, games, sports equipment); or
* * *
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 3926, HTSUS, state, in relevant part:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include:
* * *
Statuettes and other ornamental articles.
* * *
The ENs to heading 9505, HTSUS, provide in relevant part:
* * *
This 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.
* * *
Teleflora cites Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) and argues that the merchandise is classified under heading 9505, HTSUS, as festive articles, because Christmas ornaments are “closely associated”, or “intrinsically linked” with Christmas. Teleflora also cites United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976) to argue that the merchandise is within the class or kind of merchandise described by heading 9505, HTSUS.
We note that if the merchandise is classifiable in heading 9505, HTSUS, it is excluded from Chapter 39 by Note 2 to Chapter 39.
Merchandise is classifiable in heading 9505, HTSUS, as a festive article if the article satisfies two criteria: (1) it must be closely associated with a festive occasion and (2) 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, 452 F. Supp 2d. 1316 (Ct. Int’l Trade 2006), aff’d 501 F. 3d 1303 (Fed. Cir. 2007) reh’g denied (Fed. Cir. April 2, 2008) citing Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) and Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997).
In their internal advice request, Teleflora describes the merchandise as “Christmas ornament balls” and alternatively as “decorative picks that include miniature Christmas tree ornaments in either red or gold”. Teleflora explains that the merchandise is designed specifically to resemble miniature versions of Christmas tree ornaments. However, the descriptive literature provided by Teleflora describes the merchandise as gold and red “ornament picks”, not as “Christmas ornament balls” or as “Christmas tree ornaments”. It is also apparent from the pictures in the Teleflora resource guide provided, that the merchandise is gold and red balls attached to plastic picks, without any hangers or loops on top, and thus not resembling ornaments for use on a Christmas tree. Instead, the merchandise is ornament picks comprised of gold and red colored plastic balls attached to plastic stems for insertion into floral arrangements.
Teleflora explains that after importation, independent florists incorporate the merchandise into “Christmas bouquets” for sale to Teleflora customers at Christmas. Teleflora states that the gold ornament picks are designed to be sold with Teleflora’s “Have a Ball Bouquet”, a floral arrangement that includes a gold vase in the shape of a Christmas ornament. It also states that the red ornament
picks are designed to be sold with Teleflora’s “Christmas Present Bouquet”, which includes a red and white striped vase in the shape of a square box. Teleflora explains that the use of the merchandise to decorate foliage outside of the Christmas season would be “aberrant”.
Applying the two-part test for festive articles, supra, the gold and red colored plastic ball ornament picks are not closely associated with Christmas and are not used or displayed principally during Christmas. Their physical appearance is not so intrinsically linked to Christmas such that their use during other time periods would be aberrant. The ornament picks are not limited to use at Christmas. They can be used throughout the year. For example, it would not be aberrant to use the ornament picks on various occasions for arts and crafts projects, and for various decorative purposes such as decorating plants, floral arrangements, centerpieces, and gift packages.
Although the Teleflora floral bouquets are stated to be advertised, marketed and sold only during Christmas, classification is based upon the condition of the articles at the time of importation. United States v. Citroen, 223 U.S. 407 (1911). The incorporation of the ornament picks into the “Have a Ball Bouquet” and the “Christmas Present Bouquet” does not transform the otherwise non-festive ornament picks into festive articles. CBP has consistently stated neither the motif nor the sale of a good alone is sufficient to transform an item into a festive article. See Headquarters Ruling Letters (HQ) 958406, dated January 23, 1996; HQ 966215, dated February 23, 2003; and HQ 964411, dated May 2, 2002. Therefore, we conclude that the merchandise is not “festive articles” of heading 9505, HTSUS.
Our findings are consistent with CBP precedent. See HQ 955239, dated February 28, 1994 (glass ball picks comprised of colored glass balls attached to wire stems were not traditionally associated or used at Christmas); NY N050705, dated February 27, 2009 (although glass ball picks may be used at Christmas, they are not limited exclusively to Christmas use. They may be used to decorate floral arrangements, centerpieces, plants, wreaths, gift packages, etc. on various occasions throughout the year.); NY N060258, dated June 1, 2009 (in the condition as imported picks may be used to decorate functional articles that do not fall in chapter 95); HQ 950933, dated March 25, 1992 (Although the subject articles are decorative, floral picks as a class or kind of merchandise are not specifically festival related. Floral picks are used throughout the year and come in a wide variety of motifs.”)
Finally, in HQ 963636, dated October 19, 2000, CBP addressed the issue of picks sold in holiday catalogs in anticipation of the Christmas season:
We would not dispute that some of these articles will appear as components in goods made up for Christmas sale, that they are principally decorative, and that the completed articles are designed to be used in the celebration of a particular holiday. However, the disqualifying factor here is that these articles under consideration in this protest. . .are not in and of themselves festive articles. Rather, they are used in floral bouquets and arrangements, swags, wreaths, table centerpieces, and the like, which when assembled may include distinctly holiday elements, qualifying the whole article for classification as a festive article.
Therefore, the merchandise is classifiable in heading 3926, HTSUS.
HOLDING:
In accordance with GRI I, the ornament picks are classified in heading 3926, 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 2009 general, column one rate of duty, at the time of entry, was 5.3% ad valorem.
Sixty days from the date of this letter, Regulations and Rulings of the Office of International Trade will take steps to make this decision available to Customs and Border Protection (“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,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch