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HQ 956057




June 24, 1994

CLA-2 CO:R:C:F 956057 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.10.00; 9505.90.60

District Director
U.S. Customs Service
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth Airport, TX 75261-0950

RE: Decision on application for further review of Protest No. 5501-93-100345, filed October 20, 1993, concerning classification of wooden ornaments depicting nutcrackers, eggs, and other figures; Heading 4420, wood marquetry and inlaid wood, statuettes and other ornaments, of wood; Heading 9505, festive, carnival and other entertainment articles; GRI 3 set put up for retail sale.

Dear Sir:

This is a decision on a protest filed October 20, 1993, against your decision in the classification of merchandise liquidated on July 25, 1993. Samples of the merchandise were submitted to our office for review.

FACTS:

The merchandise at issue, imported from China, are various assortments of wooden ornaments, ranging approximately from less than one inch to three inches, in height. Each figure has a small cord or string for hanging. The assortments include the following:

1. Item 1830C/s/6 containing 6 wooden rabbit figures modeled after ornamental nutcracker figures;

2. Item 50417/s/34 containing 31 whimsical animal ornaments, one ring, and two eggs, all decorated wood;

3. Item 50425/s/44 containing 24 eggs and 20 large animals, all decorated wood;

4. Item 50422/s/56 containing 30 small eggs, 18 whimsical animals, 6 apples, and 2 rings, all decorated wood; and

5. Item 50556/s/38 containing 14 large eggs, 2 medium eggs, 4 small eggs, 6 large animals, 7 large animals combined with other figures or objects, 3 medium animals, 2 medium flowers, all decorated wood.

The protestant entered the merchandise under subheading 9505.90.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles...: Other: Other," at a duty rate of 3.1 percent ad valorem.

You liquidated the merchandise under subheading 9503.49.0020, HTSUSA, as "Other toys...: Toys representing animals or non-human creatures...: Other, Toys not having a spring mechanism: Other," at a duty rate of 6.8 percent ad valorem.

However, upon further review, you suggest classification under subheading 4420.10.00, HTSUSA, as "Wood marquetry and inlaid wood...: Statuettes and other ornaments, of wood," at a duty rate of 5.1 percent ad valorem. With the exception of Item 1830C/s/6, you believe the articles qualify as sets put up for retail sale, and their essential character is imparted by the animal figures.

It also is our understanding that Item 40701/s/18, containing 18 large wooden decorated eggs, was appropriately entered, classified, and liquidated under subheading 9505.90.60, HTSUSA, and therefore is not at issue.

ISSUE:

Whether the decorative, wooden ornaments are classifiable within heading 9505 as festive, carnival or other entertainment articles or within heading 4420 as wood marquetry and inlaid wood, statuettes and other ornaments of wood.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. 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. 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 GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description 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.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The ENs 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.

(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....

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.

As this merchandise is not designed for sustained wear and tear, nor is purchased because of its extreme worth or value, Customs considers the merchandise to be made of non-durable material. In addition, the articles' primary function is decorative, as opposed to, utilitarian.

However, when examining the merchandise, as a whole, it is evident that only the decorative eggs are traditionally associated or used with the particular festival of Easter. Neither the nutcrackers, nor the animals or other figures would be included under this heading. It has been Customs position that decorative eggs, but not nutcrackers, animals, and other such figures are ejusdem generis with those articles cited in the ENs to 9505, as exemplars of traditional, festive articles. This position is distinguishable from the decision reached in HRL 952454, issued January 26, 1993, where articles qualifying as Christmas tree ornaments were classified within heading 9505 as festive articles. The articles other than the decorative eggs must be classified elsewhere.

Heading 4420 provides for, inter alia, wood marquetry and inlaid wood, statuettes and other ornaments, of wood. The ENs 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. As the wooden nutcrackers, animals, and other figures are ornamental and decorative, they are classifiable in heading 4420.

With the exception of Item 1830C/s/6 containing only wooden nutcrackers and classifiable within heading 4420, each assortment consists of decorative eggs classifiable within heading 9505 as well as animals and other figures classifiable within heading 4420. Since separate HTSUS headings provide for each article, pursuant to GRI 3(a) the merchandise is classified under the heading which provides the most specific description of the merchandise. However, all such headings are regarded as equally specific when each refers to only part of the articles in a set put up for retail sale.

In accordance with EN X to GRI 3(b), a set put up for retail sale must: (a) contain at least two items classifiable in different headings; (b) contain items put up together to meet a particular need or carry out a specific activity; and (c) be put up for sale directly to users without repacking. Because the assortments meet these criteria and qualify as sets, we turn to GRI 3(b) to classify the merchandise. This provides that the set is classified by the article which gives the set its essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article, or set, is. EN VIII to GRI 3(b) explains that essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the article.

With regard to Items 50425/s/44, 50442/s/56, and 50556/s/38 the decorative eggs provide the greatest quantity. In addition, because decorative eggs are traditionally used and associated with Easter, they distinguish the sets specifically as Easter decorations. As the decorative eggs impart the essential character, these sets are classifiable within heading 9505. The appropriate subheading is 9505.90.60.

In contrast, with regard to item 50417/s/34 the decorative animals and figures greatly outnumber the quantity of decorative eggs. It is not apparent that this set is distinguishable as an Easter decoration. As the wooden figures, other than the decorative eggs, impart the essential character, this set is classifiable within heading 4420. The appropriate subheading is 4420.10.0000.

HOLDING:

Items 1830C/s/6 and 50417/s/34 are classifiable in subheading 4420.10.0000 as "Wood marquetry and inlaid wood...: Statuettes and other ornaments of wood," at a general column one rate of duty of 5.1 percent ad valorem.

Items 50425/s/44, 50422/s/56, and 50556/s/38 are classifiable in subheading 9505.90.60 as "Festive, carnival or other entertainment articles...: Other: Other," at a general column one rate of duty of 3.1 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. A copy of this decision with the Form 19 should be sent to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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