Application for Further Review of Protest No. 5501-94-100305, concerning the tariff classification of a string ofbeads of plastics

HQ 957393 November 20, 1995 CLA-2 RR:TC: FC 957393 ASM CATEGORY: Classification TARIFF NO.: 9505.10.2500 Port Director P.O. Box 619050 DFW Airport, Texas 75261-9050 RE: Application for Further Review of Protest No. 5501-94-100305, concerning the tariff classification of a string of beads of plastics Dear Sir: This is a decision on a protest, against the decision of Customs port of Dallas, in the classification of merchandise liquidated on July 15, 1994. FACTS: Entry was made in 1994 of items identified by the Protestant as "garlands of a type for Christmas trees" (items 2192QR, 2192S, 219WAB, 25601G/C, 25601S/C, 25604BO/G, 25604R/G, 25604R/GRN), under subheading 9505.10.2500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for festive articles, dutiable at 5 percent ad valorem. At liquidation, Customs classified these articles under subheading 3926.90.3500, HTSUSA, articles of plastics, articles thereof [of beads], not elsewhere specified or included, dutiable at 6.6 percent ad valorem. ISSUE: Whether the subject merchandise, strands of beads identified as items 2192QR, 2192S, 219WAB, 25601G/C, 25601S/C, 25604BO/G, 25604R/G, 25604R/GRN, are classifiable as "festive articles" under subheading 9505.10.2500, HTSUSA, or "articles of beads," under subheading 3926.90.3500, HTSUSA.  - 2 - LAW AND ANALYSIS: Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systemic detail of the harmonized system is such that virtually all 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 GRI's may then be applied. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's. The Protestant contends that the strands of beads should be classified as Christmas tree ornaments in subheading 9505.10.2500, HTSUSA. In the protest, it is stated that the beads are packaged for retail sale with a white, green, and red header with snowflakes printed on it. The cardboard header states "Seasonal Shop." There are three criteria for merchandise to be classified as festive articles, which are as follows: 1. The item is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood); 2. The item functions primarily as a decoration (e.g., its primary function is not utilitarian); and 3. The item is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter). The subject articles meet the first criterion because they are of non-durable material and are not purchased for their extreme worth. Further, the item functions primarily as a decorative garland to be used on a Christmas tree. A Christmas catalog was submitted which demonstrates that strands of beads, similar to those at issue, are marketed during the Christmas holiday season, primarily for use as a decoration, i.e., as a Christmas tree garland. Thus, as Christmas tree ornaments, the merchandise is traditionally associated with the Christmas holiday and festivities and should be classified as "festive articles" under heading 9505, HTSUSA.  - 3 - In order for merchandise to be classified as Christmas tree ornaments, it is necessary to consider the following criteria: 1. The item is advertised and sold as a Christmas tree ornament; 2. There is some method, generally a loop attached to the top, to hang the item on a tree; and 3. The item is not too big or too heavy to be hung or attached to a tree. The red and green header and the words "Seasonal Shop" in the circumstances of this case indicate that these articles are intended to be sold as Christmas decorations. The articles are in lengths of 9 feet and 12 feet which is consistent with use as a Christmas tree garland. A shorter length might be used for costume jewelry or very long lengths could have multiple uses. As such, this type of merchandise is identifiable as a Christmas tree garland, and should be classified as a Christmas tree ornament under subheading 9505.10.2500, HTSUSA. HOLDING: The subject merchandise, is properly classified under subheading 9505.10.2500, HTSUSA, a provision 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," dutiable at 5 percent ad valorem. Since reclassification of the merchandise as indicated above would result in a lower rate of duty, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19, Notice of Action. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels. Sincerely, John Durant, Director Tariff Classification Appeals Division