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HQ 950958


February 1, 1993

CLA-2 CO:R:C:F 950958 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.10.0000

Ms. Helen Sena
Russ Berrie & Co., Inc.
111 Bauer Drive
Oakland, NJ 07436

RE: Modification of HRL 083965; Wooden Floral Picks in 4420 HTSUSA; Statuettes and other ornaments, of wood; Not 9505 festive articles

Dear Ms. Sena:

In Headquarters Ruling Letter (HRL) 083965 issued June 16, 1989, wooden floral sticks (also known as picks), imported from Taiwan, were classified in subheading 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUSA), as "Festive, carnival or other entertainment articles,...: Other: Other." We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

FACTS:

The articles at issue are decorated wooden floral picks designated #4123, an Easter pick; #4124, a Valentine's Day pick; and #4125, a Mother's Day pick. The Easter pick consists of a flat wooden egg attached by a spring to the top of the pick. The wooden egg is decorated with painted flowers and the words "You're Egg-stra Special." Pastel colored ribbons form a bow around the spring. The Valentine's Day pick has a superimposed bear and is attached to the pick by a spring. The words "I love you" are written across the bear. Ribbons tie a bow around the spring. Customs does not have a description or sample of the Mother's Day pick.

ISSUE:

Whether the floral picks are classifiable in heading 9505 as festive articles; or rather in heading 4420 as wood marquetry and inlaid wood; statuettes and other ornaments, of wood.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported 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. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, 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.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate 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.

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. 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. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

First, the picks are made of non-durable material. Customs will consider articles, such as the picks, to be made of non- durable material since they are not designed for sustained wear and tear, nor are purchased because of their extreme worth or value (as would be the case with a decorative, yet costly, piece of art or crystal).

Next, the articles' primary function is decorative, as opposed to, utilitarian. It is apparent, the picks serve no useful function besides their role as decorations.

However, when examining the picks, as a whole, it is evident that the articles are not traditionally associated or used with a particular festival. The picks are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. On the contrary, the Valentine's Day pick may serve to express love or affection not only on Valentine's Day, but also on other occasions, such as anniversaries, birthdays, etc. Likewise, the Easter pick may adorn various articles throughout the spring season. The subject articles must be classified elsewhere.

Heading 4420 provides, inter alia, for wood marquetry and inlaid wood; statuettes and other ornaments, of wood. The EN's to 4420 indicate that the heading covers a wide variety of articles of wood, including decorative articles, as well as, statuettes, animals, figures and other ornaments. Because the wooden picks are ornamental and decorative, they are classifiable in heading 4420. The applicable subheading is 4420.10.0000.

HOLDING:

The wooden floral picks are classifiable in subheading 4420.10.0000, HTSUSA, as "Wood marquetry and inlaid wood;... statuettes and other ornaments, of wood...: Statuettes and other ornaments, of wood." The general column one rate of duty is 5.1 percent ad valorem. We note that the ruling being modified indicated a general column one rate of duty of 3.1 percent ad valorem.

This notice should be considered a modification of HRL 083965 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 083965 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 083965 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, you may 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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