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HQ 967567




May 31, 2005

CLA-2 RR:CR:GC 967567 MG

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.10.0000

Ms. Shirley Schmidt
Pier 1 Imports, Inc.
100 Pier 1 Place, Level 16
Fort Worth, TX 76102

RE: Ruling Request for “Cat & Dog Pals Photoholder”, SKU 2058600 (“photoholder”)

Dear Ms. Schmidt:

In your letter to the Director, National Commodity Specialist Division (NCSD), U.S. Customs and Border Protection, New York, NY, dated January 24, 2005, you inquire as to the classification of the Cat & Dog Pals Photoholder under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter was forwarded to this office for reply. The classification of the Photoholder is set forth below.

FACTS:

Based upon examination of a sample and the information you submitted, the photoholder consists of a carved wood ornament with two wire attachments. The ornament represents a cat and a dog sitting together on a swing. The ornament is hand carved from wood and decoratively painted. Attached through a hole in the paw on each side of the ornament is an iron wire that curls at the upper end and, at the lower end, is inserted in the block of wood which represents the swing.

The curled portions of the wires are intended to be used to hold photos, recipe cards, notes or similar flat, thin items. The ornament is approximately 4” long x 4” high x 2” wide. The wires extend another inch above the ornament. The back of the ornament features a clipped on piece of carved wood representing the cat’s and dog’s intertwined tails. The material breakdown indicates that the value of the wood is approximately ten times that of the wire. The material breakdown by weight is stated to be .05 kg or 98% for the wood and .001 kg or 2% for the wire. ISSUE:

Whether the instant photoholder is classified as an article of heading 4420, HTSUS, which provides for statuettes and other ornaments, of wood; or as an article of heading 8306, HTSUS, which provides for statuettes and other ornaments of base metal.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUSA provisions under consideration are as follows:

4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:

4420.10.0000 Statuettes and other ornaments, of wood.

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:

Statuettes and other ornaments, and parts thereof:

8306.29.0000 Other.

At the outset, we note that the EN to heading 4420 states that the heading covers “decorative articles” and includes “Statuettes, animals, figures and other ornaments.” We further note that the EN to heading 8306 does not single out animals. Heading 8306 (B) specifically requires that the ornaments be “of base metal (whether or not incorporating subsidiary non-metallic parts)”. Because the photoholder is an ornament of wood incorporating a subsidiary metallic part, it is prima facie classifiable in heading 4420.

The competing subheadings at issue provide for statuettes and other ornaments designed essentially for decoration, articles which have little or no peripheral utility value. The “Cat & Dog” photoholder is essentially a decorative woodcarved ornament in which every component adds to its decorative aspect (i.e., the animals, the swing, the clipped and joined wood tails, and the two metal wires holding a swing).

In this regard, the manufacturer has meticulously designed the wood ornament, attaching the movable wooden tail piece to the cat and dog figures, thus enhancing its decorative nature. The iron wire inserted through the animals’ paws represents pals holding onto a swing, fitting the overall visual theme of the product (i.e., swinging pals).

Although photos, recipe cards, notes or similar things can be inserted into the curled part of the wire, there is no requirement that it be used as such, as would be the case with a picture frame that is principally designed to hold a picture, or a napkin ring principally designed to hold a napkin, regardless of ornaments. See HQ 089651, dated September 11, 1991.

The subject photoholder is primarily designed for use as a statuette or ornament for display on a desk or table and is not meant to be stored until it may be used as a photo or note holder. When displayed, the product may or may not be used as a photo or note holder. The wire attachments blend with the ornament’s design to enhance its appearance and to create a theme. The photo holding aspect is, therefore, a secondary feature of the decorative woodcarving. We also note that the amount of metal, by value and weight, is relatively insignificant.

Photo holders have been classified under subheading 8306.29.0000, HTSUSA. See NY K80391, dated November 7, 2003; NY F88037, dated July 7, 2000; NY J86304, dated June 24, 2003; NY K88530, dated August 19, 2004; and NY E88565, dated October 21, 1999. However, the information pertaining to the details and components of those photo holders is insufficient to allow reasonable comparisons with the instant photoholder.

In light of the level of design and detail of the instant woodcarving and the above discussion, we find that the photoholder is properly described as a statuette or ornament of wood under heading 4420. The instant photoholder is, therefore, similar to the hand-carved and hand-crafted decorative wood ornaments of subheading 4420.10.0000, HTSUSA. See, NY G89579, dated April 24, 2001; NY C83037, dated January 20, 1998; NY 882505, dated February 24, 1993; and NY 880772, dated December 22, 1992. The photoholder is classifiable according to GRI 1, under subheading, 4420.10.0000, HTSUSA, which provides for “Statuettes and other ornaments, of wood.”

HOLDING:

The “Cat & Dog Pals Photoholder” is classifiable under subheading 4420.10.0000, HTSUSA, which provides for “Statuettes and other ornaments, of wood.” The 2005 column one, general rate of duty is 3.2 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

Sincerely,

Myles B. Harmon, Director

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