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HQ 089308


September 16, 1991

CLA-2 CO:R:C:F 089308 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5404.90.0000; 3920.71.0000

Mr. Stanley Geller
President, Easter Unlimited
80 Voice Road
Carle Place, NY 11514

RE: Modification of Pre-Classification Review (PC) #835839; "Happy Easter Grass"; Cellophane Gift Wrapping.

Dear Mr. Geller:

It has been brought to our attention that several items covered by PC #835839 were misclassified. The following represents their proper classification.

FACTS:

This modification involves two items: "Happy Easter Grass" and cellophane gift wrapping. The "Happy Easter Grass" is assumed to be made of synthetic strips, measuring not over 5 mm in width. It is available in green, yellow, or pink and is imported in various size packages. Item numbers 1200, 1201, and 1203 are presently at issue. Customs earlier classified the "Happy Easter Grass" in subheading 3926.90.9050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other articles of plastics, other, dutiable at 5.3 percent ad valorem.

The cellophane gift wrapping, item 1206, is in the form of sheets, on rolls. It too was classified in subheading 3926.90.9050, HTSUSA.

ISSUE:

What is the proper classification of the above-described items under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section or chapter notes.

The Explanatory Notes to the Harmonized Tariff Schedule represent the official interpretation of the tariff at the international level. Although not legally binding, they offer guidance in understanding the scope of the tariff's provisions.

Heading 3926, HTSUSA, provides, in pertinent part, for "[o]ther articles of plastics." Before an item can be classified in heading 3926, however, we must be satisfied that none of the relative section or chapter notes mandates a contrary classification. The Explanatory Notes must be considered as well. Lastly, as heading 3926 is considered a "basket provision," we must ensure that no other heading within the Nomenclature provides a more specific description of the article in question.

"Happy Easter Grass"

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Note to heading 9505 indicates that the heading covers:

(A) 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.

Items classifiable as festive articles in heading 9505 tend to serve no other purpose than decoration.

Although the subject item is arguably festive, in this case, no substantial evidence has been presented that would convince this office that the principal use of the item is as a festive article. On the contrary, we note that plastic strips of this style, color, and consistency are available year-round for a wide variety of uses. Consequently, classification of the "Happy Easter Grass" must be found elsewhere.

Heading 3920, HTSUSA, provides for "[o]ther plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials." As the "Happy Easter Grass" is made of non-cellular, non-reinforced strips of plastic, this heading, at first glance, appears to describe the subject product. The Explanatory Note to heading 3920, however, indicates that the heading "excludes strip of apparent width not exceeding 5mm (Chapter 54)." The width of the plastic strips currently under examination does not exceed 5 mm. The "Happy Easter Grass," therefore, is classifiable in Chapter 54. (Resort to heading 3926 is unwarranted as the note directs us to the product's probable classification.)

Heading 5404, HTSUSA, provides, in pertinent part, for "strip and the like...of synthetic textile materials of an apparent width not exceeding 5 mm." The Explanatory Note to heading 5404 indicates that "[t]he strips of this heading are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips or from sheets." The Note also indicates that the products of the heading are "generally in long lengths, but remain classified here even if cut into short lengths...." As the "Happy Easter Grass" fits this description, it is classifiable in heading 5404, HTSUSA.

Cellophane Gift Wrapping

As indicated earlier, heading 3920, HTSUSA, provides for "[o]ther plates, sheets, film, foil and strip, of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials." This heading accurately describes the cellophane wrapping paper. Moreover, heading 3920, HTSUSA, as opposed to heading 3926, HTSUSA, provides the more specific description of the product. Consequently, the cellophane wrapping paper is properly classifiable in heading 3920, HTSUSA.

HOLDING:

The "Happy Easter Grass" is classifiable in subheading 5404.90.0000, HTSUSA, which provides for synthetic monofilament of 67 decitex or more and of which no cross-sectional dimension exceeds 1 mm; strip and the like (for example, artificial straw)
of synthetic textile materials of an apparent width not exceeding 5mm; other (than monofilament). The applicable rate of duty is 5.1 percent ad valorem.

The cellophane gift wrapping is classifiable in subheading 3920.71.0000, HTSUSA, which provides for other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of cellulose or its chemical derivatives: of regenerated cellulose. The applicable rate of duty is 6.2 percent ad valorem.

This notice to you should be considered a modification of PC #835839 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to PC #835839 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your company's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, PC #835839 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your company may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director
Commercial Rulings Division

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