May 23, 2007 CBP Bulletin Notice on Certain Christmas Garlands
In the May 23, 2007 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 41, No. 22), CBP published a notice proposing to modify two classification rulings and revoke a treatment as follows:
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Proposed modification of rulings; proposed revocation of treatment. CBP is proposing to modify two rulings on the classification of certain Christmas garlands. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed ruling modifications, or any party involved with a substantially identical transaction, should advise CBP by June 22, 2007, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
In addition, CBP states that this notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.
Christmas garlands.The merchandise is described as Christmas Banner Garland and Christmas Basket Garland. The banner garland is composed of poinsettia leaves that are made of white paper attached to wire stems that have been wrapped with white paper with poinsettia beads made of styrofoam coated with red colored lacquer. The leaves and beads are bound together with white paper to form the artificial flower. The flowers are attached together to form a garland that measures 27" x 3" x 11-1/2". The paper garland will be used to decorate in a commercial retail environment. The basket garland is composed of poinsettia sprig leaves made of white paper attached to wire stems that have been wrapped with white paper with poinsettia sprig beads made of styrofoam coated with red colored lacquer. The wire stems are wrapped together with white paper to form an artificial flower. They are attached together to form a sprig that measures 10.25" x 6" x 2". The artificial poinsettia sprig is adorned with a red ribbon.
CBP is proposing to issue HQ W967854 and HQ W967855 in order to modify NY K88100 and NY K88101. The modifications propose to change the reasoning only and reflect the same classification based on new analysis. The classification would remain in subheading 6702.90.6500 as articles of artificial flowers, foliage and fruits and parts thereof.
The reasoning in the original rulings stated that the garlands could not be classified under Heading 9505 as festive articles for the Christmas season because the goods are not used to decorate the home. CBP now proposes that use in a retail environment rather than a home is not the reason for exclusion from heading 9505.
CBP cites Midwest of Cannon Falls, Inc. v. United States, 20 C.I.T. 123 (Ct. Int'l Trade, 1996), aff'd in part, rev'd in part, 122 F.3d 1423 (Fed. Cir. 1997), which addressed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles." CBP notes that several items composed of artificial foliage satisfy the Midwest guidelines and are recognized as festive articles for the Christmas holiday. CBP also cites HQ 950999, dated April 16, 1992, in which garlands with artificial foliage were classified in 9505.10.40, as festive articles for Christmas festivities. This ruling also explains what items would be considered festive articles for Christmas, these items include evergreen branches, poinsettia, pine cone, pine needle leaves, holly leaves, laurel leaves, holly berries or mistletoe, which are incorporated into a wreath, centerpiece, candle ring, garland, swag or sprig.
CBP proposes the view that the garland under consideration is not immediately recognizable as a Christmas decoration, and that there seems to be no reason why it could not be used as a decoration at another time of the year. It is not the customary garland that is typically exhibited as a Christmas decoration. It is not made of tinsel nor does it have the usual customary Christmas colors of red and green. Although it is made of white paper and is supposed to resemble poinsettia leaves and flowers, CBP does not believe that most people would be able to discern that the white paper leaves are supposed to be artificial poinsettia leaves and flowers that are connected with the Christmas celebration.
Furthermore, CBP notes that although the articles were used to decorate the retail environment only at Christmas time, the garlands at issue were offered for sale to consumers after the Christmas holiday. Thus, CBP concludes that consumers could buy the garland and subject it to a different use. CBP proposes the view that the garland is not closely associated with the Christmas holiday as it may be equally used and displayed on occasions other than the Christmas holidays. Accordingly, CBP finds that the garland in this case should not be classified as a festive article in heading 9505, but instead in heading 6702, which provides for: "Artificial flowers, foliage and fruit and parts thereof: articles made of artificial flowers, foliage or fruit."
Proposed: new analysis, no change in classification
(For related information, see ITT's Online Archives or 04/25/06 news, 06042505, for BP summary of CBP's Guidance on the Classification of Festive Articles.)
May 23, 2007 CBP Bulletin (Vol. 41, No.22) available athttp://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/