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HQ 953183


March 22, 1993

CLA-2 CO:R:C:F 953183 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Mr. Ron Sias
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, NY 10038

RE: Classification of plastic bunny and chick floral picks; Other articles of plastics, in 3926 HTSUSA; Not 9505 festive articles; HRL's 951143, 088207, 952968

Dear Mr. Sias:

This is in response to your letter of December 7, 1992, submitted on behalf of F.W. Woolworth Co., regarding the proper classification of plastic, floral picks under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted samples with your request for a binding ruling.

FACTS:

The articles at issue, imported from Thailand, are plastic picks which include, attached to one end, a plastic, flocked bunny or chick. The larger picks (style #E-60) are approximately 8 inches in length and include bunnies with an egg, carrot or "Happy Easter" flag. The smaller picks (style #E-54) are approximately 6-1/2 inches in length and include either a bunny or chick in a plastic flower bed.

ISSUE:

Whether the floral picks are classifiable in heading 9505 as festive articles, or rather in heading 3926 as other articles of plastics.

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 decoration.

However, when examining each pick, as a whole, it is evident that the picks 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 picks may serve to decorate plants, floral arrangements, etc. throughout the year, on various occasions. It currently is our position that the motif of the picks is not dispositive of their classification. Accordingly, an Easter slogan will not transform these items into festive articles. See Headquarters Ruling Letters (HRL's) 951143, issued January 15, 1993 and 088207, issued June 4, 1991, where articles with Valentine's Day slogans were classified as other than festive articles. The subject articles must be classified elsewhere.

Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. Because the plastic picks are ornamental, they are classifiable in subheading 3926.40.00. See HRL 952968, issued January 26, 1993, where plastic picks with plastic, flocked eggs also were classified in 3926.40.00.

HOLDING:

The plastic, floral picks are classifiable in subheading 3926.40.00, HTSUSA, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The general column one rate of duty is 5.3 percent ad valorem. However, an article classified in subheading 3926.40.00 is eligible for duty free treatment under the Generalized System of Preferences (GSP) provided it meets the requirements of General Note 3(c)(ii), HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division

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