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HQ 960561




April 20, 1998

CLA-2 RR:CR:GC 960561 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Mr. Alan Andrews, Import Manager
Circle International
3275 Alum Creek Drive, Suite 200
Columbus, Ohio 43207

RE: NYRL B84085 revoked: Jingle Bell Berry Pick

Dear Mr. Andrews:

On May 8, 1997, you requested reconsideration of New York Ruling Letter (NYRL) B84085, dated April 16, 1997, issued to Bath & Body Works, Inc. which held that a "Jingle Bell Berry Pick" was classifiable under heading 8306 of the Harmonized Tariff Schedule of the United States (HTSUS). Heading 8306, HTSUS, provides for "[b]ells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal." Upon further examination, we are of the opinion that the "Jingle Bell Berry Pick" is properly classified under heading 9505, HTSUS, which provides for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof." A sample as well as a January 6, 1998, supplemental submission were forwarded for our review.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of NYRL B84085 was published, on March 4, 1998, in the Customs Bulletin, Volume 32, Number 9. One comment was received in response to the notice.

FACTS:

The article is identified as a "Jingle Bell Berry Pick." It consists of 3 red metal bells, 3 green plastic holly leaves and several strands of twisted wire. The completed article has the appearance of a holly sprig. After importation it was attached to a gift pack which was sold by Bath and Body Works only during the 1997 Christmas holiday season. The gift set consisted of a decorative whitewashed gold and iron sleigh which contained a bed of iridescent tensile on top of which was placed bottles of bubble bath, body splash and body lotion. A bar of translucent soap completed the gift pack. The gift pack was shrink wrapped and tied off by a velvet gingham bow. The subject pick was wired to the bow to give the illusion of "sleigh bells" when the product was moved. A gingham gift tag was also attached to the bow. According to the importer, the pick was imported for this one seasonal promotion and will not be imported again.

ISSUE:

Whether the "Jingle Bell Berry Pick" is classifiable as a base metal ornament under heading 8306, HTSUS, or as a "festive article" under heading 9505, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS, is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 GRIs may then be applied. The headings under consideration are as follows:

8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof

Note 1(l) to Chapter 95, HTSUS, states, in pertinent part, that, "[t]his chapter does not cover:...
(l) [b]ells, gongs or the like of heading 8306." Therefore, if the articles are classifiable as bells, they are excluded from classification as "festive articles." The one comment received in response to the notice suggested that the article may be classifiable as a bell in heading 8306, HTSUS.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise under the System. Customs believes the ENs should always be consulted. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 83.06, states, in pertinent part, that:

The heading also excludes:

(f) Articles incorporating bells, e.g., dog collars (heading 42.01), certain musical instruments (e.g., tambourines) (Chapter 92), toys (heading 95.03).

As this article is a decorative berry pick which incorporates bells, according to EN 83.06, it is not described by heading 8306, HTSUS. Therefore, the "Jingle Bell Berry Pick" is not excluded from classification in heading 9505, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996), and Court No. 96-1271, 96-1279, 1997 U.S. App. LEXIS 21617 (Fed. Cir. August 14, 1997) (hereinafter Midwest), the court addressed the scope of heading 9505, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." According to the court, all of the articles were classifiable as "festive."

In making its determination on the articles, the court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, for those articles involving holidays, and symbols not specifically recognized in Midwest, Customs will consider the general criteria set forth in Carborundum in determining whether the article is of a class or kind of good known as "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

Customs has always recognized Christmas as a festive holiday for tariff purposes and certain articles created from artificial foliage have been recognized as associated with the Christmas holiday season, including holly berries and leaves. Picks made of such foliage have not previously been recognized by Customs as articles which fall within the class of "festive articles." However, an application of the Carborundum factors indicates that the "Jingle Bell Berry Pick" falls within the scope of the class, "festive articles." The pick has the physical appearance of holly and contains small red bells in place of the holly berries. Furthermore, both the environment of sale and the expectation of the ultimate purchaser is that the pick serve as a decoration for an article which could be presented as a gift. Moreover, it is used in the same manner as merchandise which defines the class, in that it is a decoration which is a symbol for a recognized holiday season. Finally, its limited use to the holiday season is recognition of its use by the trade as a "festive article. "

Based on this analysis, Customs is of the opinion that the expectation of the ultimate purchaser, environment of sale, use in the same manner as merchandise which defines the class and recognition in the trade of this use, all indicate that this "Jingle Bell Berry Pick" is principally used as a "festive article." Therefore, the "Jingle Bell Berry Pick" is classifiable under heading 9505, specifically, subheading 9505.10.5020, which provides for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof:[o]ther:[o]ther."

HOLDING:

The "Jingle Bell Berry Pick" is classifiable under subheading 9505.10.5020, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof:[o]ther:[o]ther."

NYRL B84085 is revoked. In accordance with 19 U.S.C. publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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