OT:RR:CTF:CPMMA H328467 CMD
Mr. Mathew Samuel
Excite USA
4393 Sunbelt Drive
Addison, TX 75001
RE: Affirmation of NY N304760; tariff classification of decorative wooden sign from China
Dear Mr. Samuel:
This letter is in reference to your request, on behalf of Excite USA, for reconsideration of New York Ruling Letter (NY) N304760, dated June 17, 2019, regarding the classification of a decorative wooden sign under the Harmonized Tariff Schedule of the United States (HTSUS). U.S. Customs & Border Protection (CBP) has reviewed NY N304760 and for the reasons below, affirms the ruling.
In NY N304760, CBP classified a decorative wooden sign from China in heading 4420, HTSUS, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94.” In NY N304760, the article was described as follows:
The product under consideration is item number 9046651, the “wooden hanging Believe sign.” The decorative sign consists of a wooden frame around a visible lattice backing and a central wood plaque. The plaque is painted with the word “Believe” below a simple scene of a rustic red barn and evergreen trees. A small spray of pine needles is mounted at the top of the frame. A rope is attached for hanging.
In your request for reconsideration, you stated the article will only be sold during the Christmas season and that the article “is adorned with artificial pine needle leaves and Holly Berries.”
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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. If 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.
Pursuant to Note 1(p) to Chapter 44, if the wooden sign is found to be classifiable in Chapter 95, it cannot be classified in Chapter 44, HTSUS. In Midwest of Cannon Falls, Inc. v. United States, 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 satisfies 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, 452 F. Supp 2d. 1316, 1323 (Ct. Int’l Trade 2006 and Park B. Smith, Ltd. v. United States, (347 F.3d 922 (Fed. Cir 2003)). In Park B. Smith, the Court of International Trade ruled that articles “bearing ‘festive symbols,’ such as Christmas trees, Santas, holly, ghosts and bats, Easter eggs and bunnies,” were prima facie classifiable as “festive articles” under heading 9505, HTSUS. The Court also ruled that the phrase “closely associated with a festive occasion” requires 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.” Park B. Smith.
In Headquarters Ruling (HQ) H312630, dated October 25, 2020, CBP ruled that a reversible sign bearing the word “Noel” on one side and the word “Believe” on the other was a festive article of heading 9505, HTSUS. The word “Noel,” the French word for Christmas, was written with a wreath representing the letter “O.” On the reverse side, the word “Believe” was surrounded by a snow-topped alpine tree, a red reindeer, and four Christmas ornaments. The article was to be marketed as a “holiday-themed promotional item” and, specifically, as a “Holiday Porch Sign.”
In NY N254414, dated July 11, 2014, CBP classified an oval shaped wooden sign with the word “Believe” as a festive article of Chapter 95, HTSUS. The sign was decorated with large and prominent artificial holly berries and holly leaves hanging from a simulated garland above the word “Believe.” The sign was to be exclusively sold as a Christmas decoration.
In NY N285212, dated April 25, 2017, CBP ruled that a snowman decoration from China was classifiable in heading 9505, HTSUS. The decoration was made of medium density fiberboard (MDF) and was meant to stand upright. The snowman held a sled and wore a top hat adorned with artificial pine needles and red berries which “suggest[ed] holly berries.” The pine needles and berries were dusted with simulated snow, as was the sled. The sled was adorned with a large gold star. The snowman was to be marketed with a hangtag which read “Home for the Holidays” and sold during the Christmas holiday.
Conversely, in NY N311882, dated May 28, 2020, CBP classified a decorative wooden sign made of MDF. The sign is reversible, with the phrase “Merry and Bright” on one side, surrounded by a motif of leaves, berries, and white poinsettias. On the other side is the phrase “Let’s Get Cozy” on a white background. CBP ruled that the “Let’s Get Cozy” phrase was not festive and could be displayed year-round. CBP determined that this “year-round use” predominated, making the article not a festive article. The article was classified in subheading 4911.91.40, HTSUS.
CBP has consistently considered holly leaves and holly berries as festive symbols closely associated with Christmas, while differentiating holly berries and leaves from other types of berries which are not closely associated with Christmas. See NY N208632, dated Mar. 27, 2012 (denying classification under heading 9505, HTSUS, because “these cranberries are not recognized as a festive motif.”); NY N109676, dated June 23, 2010 (finding the red berries at issue “are not holly berries, but appear to be cranberries, which are not recognized festive foliage.”). CBP has even determined the combination of artificial holly berries and leaves with the word “believe” on a wooden sign to be a festive article. NY N254414, dated July 11, 2014. However, in that ruling the holly berries and holly leaves were “large” and “prominent.” In previous rulings where holly berries contributed to an item being classified as a festive article, the holly berries are generally accompanied by holly leaves, because the nature of artificial holly berries makes them indistinguishable from other types of artificial berries (e.g., cranberries or snow berries) without the distinct green leaves.
Applying the Midwest factors makes clear why this item is not a festive article. The word “Believe,” the rustic barn scene, and the artificial pine needles and red berries are not closely associated with Christmas. The word “believe” itself is not closely associated with Christmas. The rustic scene with the barn and evergreen trees appears and is depicted regularly outside the festival of Christmas. At best the scene is associated with winter, due to the evergreen trees and white background, which is evocative of snow. The pine needles and red berries are not closely associated with Christmas. Pine needles are evocative of the winter or fall seasons. Holly berries are associated closely with Christmas; however, the red berries are not accompanied by holly leaves. Without holly leaves, holly berries are indistinguishable from other red berries. Finally, when viewed as a whole, all of the details do not coalesce to closely associate the article with the festival of Christmas rather than the winter season. This article fails the first of the Midwest factors. This article also fails the second Midwest factor and the Park B. Smith test, because displaying this article outside of the Christmas festival would not be aberrant. As noted above, the wood sign is heavily evocative of winter itself, but not Christmas specifically. Put simply, “believe” is too generic a term on its own, and the purported “holly berries” too indistinguishable from other red berries, for this article to be closely associated with Christmas.
The wood sign at issue here is similar to the wood sign classified in NY N311882, dated May 28, 2020. In NY N311882, the phrase “Merry and Bright,” along with the phrase “Let’s Get Cozy,” and the wooden sign’s motif of non-specific leaves and berries combined were insufficient to make the item a festive article. The word “Believe,” the rustic scene, pine needles, and red berries are similarly generic. In NY N243827, dated July 29, 2013, signs containing each of the words “Joy,” “Peace,” and “Noel” were considered more closely associated with Christmas. Those articles also included a representation of a ball style Christmas ornament, which is very closely associated with Christmas. In HQ H312630, dated October 25, 2020, a decorative sign with the word “Believe” was classified as a festive article because there were additional factors which closely associated the sign with the festival of Christmas that are not present here—the word “Noel” and ball-style Christmas ornaments. In the closest comparable ruling, NY N254414, dated July 11, 2014, the “Believe” was classified as a festive article because the sign included a clear depiction of holly, both leaves and berries, which were prominent. In the present case, there are no holly leaves present and the red berries themselves are not prominent.
Lastly, you argue in your request that we should examine NY N285212, dated April 25, 2017, in reconsidering this ruling. You specifically mentioned the similarity to the article in that ruling, which you described as a “snow man adorned with pine needle leaves and holly berries,” which was classified as a festive article. However, the present case is distinguishable from NY N285212, dated April 25, 2017. The article in that case had specific features which created a closer association with Christmas than in the present case. The combination of the snowman, a star on the sled (traditionally a feature of Christmas), the sled itself, the artificial dusting of snow, and the hangtag which read “Home for the Holidays” indicates a closer association with Christmas than is present in the more generic winter scene displayed on the article at issue here. The combination of a rustic winter motif, pine needles, generic red berries, and the word “believe” are insufficient to closely associate this article with Christmas. It would not be aberrant to display this sign throughout the winter season.
Upon review, the decorative wood sign from China does not meet the definition of “festive” under the Midwest or Park B. Smith tests and cannot be classified under heading 9505, HTSUS. As such, the wood sign is properly classified under heading 4420, HTSUS, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94.” See NY N325740, dated May 9, 2022 (determining two styles of “wood bead wall hanging” were “an ‘ornament’ within heading 4420, HTSUS.”). Under the 2019 HTSUS the decorative wood sign from China was properly classified under subheading 4420.10.00, HTSUS (2019). Following changes to the HTSUS in 2022, and currently, the decorative wood sign from China is properly classified under subheading 4420.19.00, HTSUS, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments: Other.”
In conclusion, we find that the wooden “believe” sign is not classified in heading 9505, HTSUS, as a festive article. The article is not closely associated with Christmas. Pursuant to GRIs 1 and 6, the decorative wooden sign from China, as described above, is classified according to GRI 1 in heading 4420, HTSUS, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94.” Specifically, the decorative wooden sign from China is currently classified under subheading 4420.19.00, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments: Other.” The current column 1 general duty rate is 3.2%.
Accordingly, NY N304760, dated June 17, 2019, is affirmed.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division