August 8, 2007 CBP Bulletin Notice on Certain Christmas Garlands
In the August 8, 2007 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 41, No. 33), CBP published a notice modifying two classification rulings and revoking a treatment as follows:
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Modification of rulings; revocation of treatment.CBP is modifying two rulings on the classification of certain Christmas garland. CBP is also revoking any treatment it has previously accorded to substantially identical transactions.
According to CBP, the modifications and revocation are effective for merchandise entered or withdrawn from warehouse for consumption on or after October 7, 2007.
Christmas garland.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 issuing 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 HTS 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 HTS 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 HTS 9505.
CBP cites Midwest of Cannon Falls, Inc. v. U.S., 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 HTS 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 HTS 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 now takes 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 is now of 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 is not classified as a festive article in HTS 9505, but instead in HTS 6702, which provides for: "Artificial flowers, foliage and fruit and parts thereof: articles made of artificial flowers, foliage or fruit."
new analysis, no change in classification
(See ITT's Online Archives or 06/04/07 news, 07060447, for BP summary of proposed HQ W967854 and HQ W967855.)
For related information, see ITT's Online Archives or 04/24/06 news, 06042505, for BP summary.
August 8, 2007, CBP Bulletin (Vol. 41, No. 33) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/