HQ 0956440 - Classification of Fringed Garland; Heading 9505; Heading 5808; Heading 3921; Heading 3926; GRI 3(b). - United States International Trade Commision Rulings

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HQ 956440

August 19, 1994

CO:R:C:F 956440 NL

CATEGORY: CLASSIFICATION

Tariff NO.: 3926.90.9590

Ms. Brenda Myran
Midwest Importers of Cannon Falls, Inc.
32057 64th Avenue
P.O. Box 20
Cannon Falls, MN 550009-0020

RE: Classification of Fringed Garland; Heading 9505; Heading 5808; Heading 3921; Heading 3926; GRI 3(b).

Dear Ms. Myran:

This is in reply to your letter dated April 6, 1994, in which you request a ruling on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a garland consisting of an imitation leather fringe sewn to a cotton strip. A sample was submitted.

FACTS:

The fringe in questions consist of strips of brown cellular plastic less than 5 mm in width which have a textile backing for reinforcement purposes. The plastic strips are attached to a strip of adhesive tape, which is sewn onto woven blue cotton chambray binder. The sample fringe is cut to a length of eight feet and packaged as a "Christmas Time" tree garland as part of your company's "Wild West" theme.

ISSUE:

Whether the garland should be classified in Heading 9505, HTSUS, as a festive article, as a textile article, or as an article of plastic.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Classification and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Your letter proposes classification of the garland in heading 9505. Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable 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....

In general, merchandise is classifiable in heading 9505, HTSUS, 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;

3. is traditionally associated with a particular holiday.

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

Although the article in question is packaged as a "Christmas Time Garland", it is of a type of article more associated with other uses than with Christmas decoration. While garlands for Christmas trees are included in heading 9505, this fringed garland is not the type of article used to decorate Christmas trees (or walls or windows), if at all. Instead, it appears that the article primarily has utilitarian value as trim for clothing or furnishings to impart a "frontier" or "Western" idea. There is nothing to identify this as a Christmas article beyond the statement on the header card holding the polyethylene bag.

Accordingly, the "Christmas Time Garland" is not described in subheading 9505 as a festive article, and must be classified elsewhere.

Upon consideration of the possible headings which might describe this article consisting of both plastic and textile material, it appears prima facie that only heading 5808, which provides in part for ornamental trimmings in the piece, would be an appropriate classification. However, the EN to heading 5808 indicates that the heading includes narrow woven fabrics with the fringes (looped or cut) woven into their edges. The instant article is made from narrow widths of imitation leather material glued to a strip of adhesive, and is not made as described in the EN. Accordingly, the garland is not described in heading 5808.

The article is not otherwise classifiable according to the headings and legal notes of the HTSUS in accordance with GRI 1, because it consists of materials which are classifiable in different headings, i.e., headings for plastics and headings for textiles. In pertinent part, GRI 2(b) states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each of the headings refers to part only of mixed or composite goods. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states that:

...composite goods consisting of different materials or made up of different compounds...shall be classified as if they consisted of the material or component which gives them their essential character....

With respect to the garland made from cellular plastic fringe material affixed to adhesive tape and sewn to fabric, we find that the cellular plastic fringe is the material which provides the garland with its essential character. It is the fringe which has the most important role in relation to the decorative use of the article, as well as accounting for most of its weight and bulk. Therefore, classification of the garland will be determined by the classification of the cellular plastic fringe.

Note 1(h) to Section XI, HTSUS, provides that Section XI, covering textiles and textile articles, does not cover "Woven, knitted, or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39." Note 2(a)(5) to Chapter 59 indicates that plates, sheets or strip of cellular plastics, combined with textile fabric, are plastic articles of Chapter 39 where the textile fabric is present merely for reinforcing purposes. Here, the textile backing laminated to the cellular plastic imitation leather plainly serves only to reinforce the plastic material. It is evident from the above-referenced Note that the cellular plastic fringe is not eligible for classification in a textile heading of Section XI, but rather properly is described as an article of plastic of Chapter 39.

The competing headings of Chapter 39 are heading 3921, HTSUS, covering other plates, sheets, film, foil and strip of plastics; and heading 3926, covering other articles of plastics. Note 10 to Chapter 39 states:

In headings 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip...and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares), but not further worked (even if when so cut they become articles ready for use).

The further working of the textile-reinforced cellular plastic by cutting it into strips and affixing it to adhesive and textile binding thus precludes its classification in heading 3921. Classification is, accordingly, in heading 3926. The specific classification is in subheading 3926.90.9590, the provision for "Other articles of plastic and articles of other materials of headings 3901 to 3914: Other: Other, Other."

HOLDING:

The "Christmas Time" imitation leather garland is classified at subheading 3926.90.9590, HTSUS. The rate of duty is 5.3 percent ad valorem.

Sincerely,

John Durant
Director, Commercial

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