CLA-2 OT:RR:CTF:TCM H118439 TNA
Ms. Khem Lall, Federated Merchandising Group
11 Penn Plaza
New York, NY 10001
Ms. Cheryl Santos, CVS Pharmacy
One CVS Drive
Woonsocket, RI 02895
RE: Revocation of NY J85472 and NY L85374; Tariff Classification of metal jingle bell wreaths and hanging decorations
Dear Ms. Lall:
This letter is regarding New York Ruling Letter (“NY”) J85472, dated June 10, 2003, and NY L85374, dated June 29, 2005, which pertain to the classification of jingle bell wreaths and hanging decorations under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed these rulings and have found them to be in error. For the reasons that follow, we hereby revoke NY J85475 and NY L85374.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY J85472 and NY L85374 was published on November 2, 2011, in Volume 45, Number 45, of the Customs Bulletin. We received one comment in response to this notice, which is addressed in the ruling.
FACTS:
The merchandise at issue consists of four different items that are made out of metal jingle bells.
Item TN3056642, named “Bell Wreath,” consists of silver metal jingle bells in the shape of a wreath that measures approximately 13-3/4 inches in diameter. The silver bells are decorated with glitter. At the top of the wreath are three metal holly leaves and three metal holly berries that jingle, and a metal loop for hanging.
Item TN30872642, named “Christmas Tree Ornament,” is a hanging decoration comprised of purple metal jingle bells that measures approximately 3-3/4 inches in diameter. The item has a cord loop for hanging and is imported in various shades of purple, green, and silver.
Item TN30853642, named “Spiral Cone,” is a hanging decoration in the shape of a spiral with attached purple, silver and blue jingle bells. The item measures approximately 5-1/2 inches in length and has a cord loop for hanging.
Item number 191680 is a 10 metal jingle bell wreath. It contains 18 pieces of shiny red cross mouth bells and 12 pieces of shiny green round corner snowflake mouth bells. The bells are wire strung around a round metal piece covered with rubber tubing. The center top of the wreath is trimmed with green holly leaves, red berries and a gold ribbon bow all made of metal. A braided cord is attached to the top for the purpose of hanging the wreath.
In NY J85475 and NY L85374, the subject merchandise was classified 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.”
ISSUE:
Whether strings of jingle bells fashioned in the shape of a wreath and hanging decorations made of jungle bells 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 festive article?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 provisions under consideration are as follows:
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…
Note 1(l) to Chapter 95, HTSUS, states, in pertinent part:
This chapter does not cover:…
(l) Bells, gongs or the like of heading 8306.
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 Harmonized System 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).
Note 1(l) to Chapter 95, HTSUS, states that “this chapter does not cover bells, gongs or the like of heading 8306.” The subject merchandise is primarily made up of bells that function as bells by chiming to alert the house’s occupant that someone is at the front door. The merchandise is therefore described by heading 8306, HTSUS, and it cannot be classified in heading 9505, HTSUS, pursuant to the exclusion of Note 1(l). As a result, the remaining competing classifications are at the six digit level. Under GRI 6, the issue is whether the bells are classified as such in subheading 8306.10, HTSUS, or as other ornaments in subheading 8306.29, HTSUS.
The subject merchandise consists of cords bearing non-electric jingle bells made out of base metal. GRI 3 states that “when goods are classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description.” The EN to GRI 3 further states that a “description by name is more specific than a description by class.” Under this rule of relative specificity, we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty. Russ Berrie & Co. v. United States, 381 F.3d 1334, 1338 (Fed. Cir. 2004), citing to Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998).
Subheading 8306.10.00, HTSUS, is the more specific subheading at issue because subheading 8306.29.00, HTSUS, includes a broader range of goods, statuettes and other ornaments, made of base metal. Part A of the EN to heading 8306, HTSUS, lists “decorated bells” as included in subheading 8306.10.00, HTSUS, whereas Part B to the EN, describing ornaments of subheading 8306.29.00, HTSUS, excludes articles of more specific headings, and, by GRI 6, subheadings. The subject merchandise consists almost exclusively of bells rather than merely incorporating bells. The wires that hold and support the bells, and the ribbons that embellish them, are secondary components to the bells themselves.
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); HQ H064916, dated August 10, 2010 (classifying a Snowman Bell Wreath in 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. As a result, we find that the subject jungle bell wreaths are classified under subheading 8306.10.00, as “bells, gongs, and the like.”
CBP received one comment in response to the proposed revocation, which opposed reclassifying Item TN30872642, the “Christmas Tree Ornament,” and Item TN30853642, the “Spiral Cone.” The commenter argues that these items have the characteristics of Christmas tree ornaments, not door hangings or other decorations. Commenter further argues that in relying on Note 1 to Chapter 95, HTSUS, to exclude Items TN30872642 and TN30853642 from Chapter 95, HTSUS, CBP ignores the nature of Christmas tree ornaments by asserting that they cannot be composed of jingle bells. Commenter notes that Items TN30872642 and TN30853642 are of the type sold as Christmas tree ornaments and are not used in the manner of bells or gongs, and so they are not “like” bells or gongs. As a result, the commenter believes that Items TN30872642 and TN30853642 are outside the common understanding of “bells, gongs and the like, non-electric,” by virtue of being readily recognizable as Christmas ornaments.
In response, we note that articles made primarily of bells, including those made of jingle bells, are classified in heading 8306, HTSUS. See HQ H055383; HQ H064916. Articles are excluded from this heading if they merely incorporate bells. In the present case, Items TN30872642 and TN30853642, like the merchandise at issue in HQ H055383 and HQ H064916, do not simply incorporate bells. To the contrary, the bells are the whole merchandise. The fact that they may be hung on a Christmas tree does not change their character. The language of heading 8306, HTSUS, “bells, gongs, and the like,” is expansive and encompasses this merchandise. The same language in the exclusion of Note 1 to Chapter 95, HTSUS, is similarly expansive and excludes the subject merchandise.
In disagreeing with the classification of the subject merchandise in heading 8306, HTSUS, the commenter also recommends that CBP reconsider NY N022642, dated February 6, 2008, wherein CBP classified a number of ornaments, some with bells, in heading 8306, HTSUS. The commenter argues that the jingle bells in the ornaments of NY N022642 were clearly ornamental. Commenter argues that as a result, classification in heading 8306, HTSUS, was contrary to the EN 83.06 exclusion of articles composed of bell components.
In response, we note that the one ornament of NY N022642 that had no bells on it was classified in subheading 8306.29.00, HTSUS, which provides for “statuettes and other ornaments, and parts thereof, other.” This provision does not require bells to be a part of the merchandise for classification therein. With respect to the other items classified in NY N022642, Style 88-4975 was made entirely of small jingle bells that formed the shape of the ornament. There, the bells were more than merely incidental. The remaining items, Style 88-5753 and Style 88-5755, contained jingle bells at their center. Style 88-5753 was shaped like a snowflake and Style 88-5755 was shaped like a cross. In NY N022642, CBP found that the bells were instrumental to the design of the ornaments, and that the ornaments were marketed and sold both for holidays and for every day use. As a result, we found that they were not clearly festive articles, and were therefore better described by the terms of heading 8306, HTSUS. In examining this ruling, we find its reasoning to be correct. Furthermore, its logic and classification support the classification of the subject metal jingle bell wreaths and hanging decorations in heading 8306, HTSUS.
HOLDING:
By application of GRI 1, the jingle bell wreaths are classified in heading 8306, HTSUS, which provides for “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.” By application of GRIs 3 and 6, they are specifically under subheading 8306.10.00, HTSUS, as “bells, gongs, and the like.” As such, the applicable duty rate is 5.8% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY J85472, dated June 10, 2003, and NY L85374, dated June 20, 2005, are REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon
Director, Commercial and Trade Facilitation Division