CLA-2-39:OT:RR:NC:N4:433

Pam Reeder, Attorney in Fact
Vice President, Imports
Evans and Wood & Co., Inc.
612 E. Dallas Road, Suite 200
Grapevine, TX 76051

RE: The tariff classification of plastic garlands, sprays, and branch from China.

Dear Ms. Reeder:

In your letter dated May 22, 2009, on behalf of Hobby Lobby Stores, Inc., you requested a tariff classification ruling. Your samples will be returned as requested.

Item CBRYG703 is a six foot sequin garland. This item consists of sequins strung on plastic coated wire stems, which gives the appearance of a berry branch garland. The material content for this item was not provided. It will be available in red, pink, green, and gold. There is a placard labeling this item as a Christmas garland.

Item CBRYG705 is a six foot sequin and beaded garland. This item consists of plastic beads and sequins strung on paper-wrapped wire stems, which gives the appearance of a berry branch garland. The material content by weight is 41% plastic, 34% paper, and 25% wire. It will be available in red, silver, and gold. There is a placard labeling this item as a Christmas garland.

Item CSBRY714 is a spray with beads, balls and sequins. This item consists of red, green and clear, cylindrical and round, plastic beads and green plastic sequins on wire stems to form a decorative spray. The material content by weight is 69% plastic, 17% wire, and 14% paper.

Item CSBRY904 is a loopy branch. This item consists of glitter-covered loops of wire, strung with plastic spangles and beads held together by a paper-wrapped stem, to form a decorative spray. The material content by weight is 40% plastic, 40% metal, and 10% paper and 10% glitter. It will be available in red, gold, silver, green, and hot pink.

Item CS903 is a spray with cutout discs and circles. This item consists of plastic, glitter-covered discs and circles affixed to plastic and wire branches to form a spray. The material content by weight is 40% plastic, 40% glitter, and 20% wire. No color availability was specified.

It has been suggested by Hobby Lobby Stores (HLS) that all five items are to be used exclusively to create a festive atmosphere in the home for the Christmas season. In further support that these items are of a festive nature, it is stated by HLS: “the items are attached to special Christmas-themed header cards, and marketed, advertised, and sold for a limited time only during the Christmas season, in a special, temporary section of the Hobby Lobby Stores.”

Heading 9505 of the Harmonized Tariff Schedule of the United States (HTSUS) provides for, inter alia, festive, carnival and other entertainment articles. The Explanatory Notes (EN's) to the HTSUS indicate that heading 9505 covers:

Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs....

Those artificial foliage items which qualify as Christmas articles of HTSUS subheading 9505.10 include: wreaths, garlands, candle rings, centerpieces, and complete articles and made up of foliage commonly and traditionally associated with Christmas; example of which are 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. – see HQ 950999 dated April 16, 1992.

To qualify as a festive article of heading 9505, an item must be both decorative and traditionally associated with a particular holiday. We find that the garlands, sprays and loopy branch do not conform to the traditional foliage as described above for Christmas festivities – nor do the physical characteristics of these items [specifically the foliage, colors, spangles, beads and bugles] dictate use solely for Christmas festivities. Therefore, these items are not classified in HTSUS heading 9505. Additionally these items are not classified as artificial flowers or foliage in HTSUS, Chapter 67 heading 6702, as the articles do not resemble the natural products.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The GRIs provide 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, 2 through 6, are then applied taken in order.

GRI 3(b) covers mixtures, composite goods consisting of different materials or made up of different components and goods put up in sets for retail sale which cannot be classified by reference to GRI 3(a). GRI 3(b) states that such groupings are to be classified as if they consisted of the material or component that gives them their essential character. Explanatory Note (EN) Rule 3(b)(VII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of the constituent materials or components in relation to the use of the good.

For tariff classification purposes, the garlands, sprays, and loopy branch consisting of spangles, beads and bugles attached to wire stems wrapped in paper or plastic form composite goods. Such composite goods are classified as if they consisted of the component which gives them their essential character. Weighing various factors of the constituent materials, we find the spangles, beads, and bugles, impart the essential character for items: CBRYG703 – sequin garland; CBRYG705 – beaded and sequin garland; CSBRY714 – spray with beads, balls and sequins; and CSBRY904 – loopy branch. For item CS903 – spray with cutout discs and circles (without spangles, beads, and bugles), we find that the plastic discs and circles impart the essential character for the item.

The applicable subheading for items: CBRYG703; CBRYG705; CSBRY714, and CSBRY904, will be 3926.90.3500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of plastic…Beads, Bugles and spangles…Other.” The rate of duty will be 2.8% ad valorem.

The applicable subheading for item CS903, will be 3926.40.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of plastic…Statuettes and other ornamental articles.” The rate of duty will be 5.3% 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 World Wide Web at http://www.usitc.gov/tata/hts/.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at (646) 733-3036.

Sincerely,

Robert B. Swierupski
Director
National Commodity Specialist Division