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NY C87081




May 15, 1998

CLA-2-95:RR:NC:SP:225/222 C87081

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.1500; 4421.90.4000

Shelly Pappas
Value City Imports
1800 Miler Road
Columbus, Ohio 43207

RE: The tariff classification of Decorative and Utilitarian Wooden Screens from China

Dear Ms. Pappas:

In your letter dated April 21, 1998 you requested a tariff classification ruling.

The instant products are an assortment of decorative and utilitarian wooden screens in three different sizes; eight inches, fourteen inches and twenty-four inches. There are four different motifs; Santa, Angels, Nutcracker Soldiers and Snowmen. These motifs are either slightly raised and painted onto the screen or the partitions of the screen contain a flat outline of the motif. None of the screens are a three dimensional representation of a motif. Your sample is returned as requested.

You claim the items are sold only during the Christmas holiday period and are used in the home. Normally, wooden screens are classified in Chapter 44. However, chapter 44, Note 1(p) excludes "Articles of 95". If the screens are classifiable in Chapter 95, then they are excluded from Chapter 44.

As a result of a recent court decision involving Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279, certain articles which were perceived to be classified elsewhere in the tariff, may now fall within the realm of "festive, carnival or other entertainment articles of Chapter 95". A range of factors will be considered in making this determination, which include, among other things, the intended use of the product, relationship to a recognized holiday, basic physical characteristics and marketing of the merchandise.

In the Informed Compliance Handbook Classification of Festive Articles, various motifs were listed which were identified as accepted symbols for Christmas. Snowmen were not a designated motif due to their association with the winter season in general. However, in that same handbook it was indicated that the stated symbols were not definitive, and additional motifs would be added. The issue of whether snowmen should be an additional accepted motif is before Headquarters now. Therefore, we cannot rule on the decorative "Snowmen" screens in this letter.

Also mentioned in the above cited Informed Compliance Handbook was the following requirement for utilitarian items to be classified in Chapter 95:

"If the item is functional, the item MUST BE a three dimensional full bodied representation of the above mentioned motifs (not just a silhouette) and meet the Carborundum tests."

The twenty-four inch screens are tall enough to be functional. For functional items to be classified within festive, they must be three dimensional representations of the accepted motifs. The twenty-four inch screens contain either slightly raised impressions or silhouettes of various motifs, they are not three dimensional in form and therefore, cannot be classified within Heading 9505.

In contrast, the eight and fourteen inch screens are purely decorative in that their size mitigates against their serving as functional screens. Since the requirements for decorative articles within Chapter 95 do not bear a three dimensional form restriction, we need only consider if the article possesses an accepted motif or symbol of the accepted holiday and is marketed and sold during the holiday for which association is claimed.

It has been established that representations of Santa Claus, angels (in certain forms), and nutcrackers are accepted symbols of Christmas, a recognized holiday. Accordingly, we find that the decorative wooden screens (measuring eight and fourteen inches in height) would now qualify as festive articles of Chapter 95.

The applicable subheading for the eight and fourteen inch decorative wooden screens with the Santa, Angel and Nutcracker Soldier motif will be 9505.10.1500, Harmonized Tariff Schedule of the United States (HTS), which provides for Festive, carnival or other entertainment articles,....: Articles for Christmas festivities ....: Christmas ornaments: Other: Of wood. The rate of duty will be free.

The applicable subheading for the twenty-four inch wooden screens with the Santa, Angel, Snowmen and Nutcracker Soldier motif will be 4421.90.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for Other articles of Wood: Other: Wood blinds, shutters, screens and shades....: Other. The rate of duty will be 5.7 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at (212) 466-5538.

Sincerely,

Robert B. Swierupski
Director, National Commodity

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