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Disclaimer. The material in this presentation is provided for general information purposes only, and is not considered binding. Many complicated factors can be involved in Customs determinations.

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  1. Disclaimer The material in this presentation is provided for general information purposes only, and is not considered binding. Many complicated factors can be involved in Customs determinations. Therefore, an importer may wish to obtain a ruling under the Regulations of U.S. Customs and Border Protection, 19 C.F.R. Part 177.

  2. FESTIVE ARTICLES

  3. Prior to Midwest Of Cannon Falls Purely decorative items and their appropriate accessories were classified within the festive heading 9505. They were considered to be traditional items (as per the Explanatory Notes) or similar to those items.

  4. Midwest of Cannon Falls (1997) Plaintiff challenges CBP’s position that only decorative articles can be classified as festive. Plaintiff argued that their utilitarian articles (jack-o’-lantern pitchers and mugs etc.) could be classified as festive articles.

  5. Midwest • Plaintiff also argued that ornaments that hang on a Christmas tree could be non-traditional in nature. • In addition, plaintiff asserts that assorted decorative articles, such as water globes (Santa Claus, Easter) were also classifiable as festive articles.

  6. Midwest (Appeal) The CAFC rules that the utilitarian articles, such as the jack-o’-lantern mugs and pitchers were classifiable as festive articles. Court rules that term “ornament” is not limited to articles that hang, and classifies floor and shelf sitting articles as ornaments. Court rules that non-traditional Christmas tree ornaments classified as festive.

  7. Expanded Interpretation of 9505 Motifs, Symbols or Representations • For purely decorative items (plaques, wall hangings, water globes, statuettes) the following patterns or motifs will cause classification as Festive (if allowed by Chapter notes) • In 9510.10 Santa Claus, Mrs. Santa, Decorated Christmas tree, Nativity Scenes, Christmas Stockings, Rudolph the Red-Nosed Reindeer • In 9505.90 Jack-O’-Lantern

  8. Tree Ornament 1. that the item is advertised and sold as a Christmas tree ornament;2. that there is some method, generally a loop attached to the top, to hang the item on a tree; and3. that the item is not too big or too heavy to be hung or attached to a tree.

  9. Midwest of Cannon Falls • Terra Cotta Turkey Container – Utilitarian article in shape of turkey hollowed in the middle and serves as a planter or pen holder • Earthenware Rabbit With Carrot – purely decorative • Classified under tariff subheading 6913.90, HTSUS as other ornamental ceramic articles

  10. Midwest of Cannon Falls “Although all of the items feature animals that are associated with a particular holiday or season, the items are not so peculiarly stylized so as to limit their use to that holiday.”

  11. CBP Response To Midwest CBP responded to the Midwest decision by re-examining the utilitarian articles that were before the court and concluded that since all the motifs were three-dimensional, that is why they were accepted by the court as festive. Institutes 3-D motif rule for utilitarian articles.

  12. Park B. Smith (2003) Because of the “three dimensional rule” applied to functional items, the government was again taken to court by the Park B. Smith company, importer of placemats, table napkins, table runners and woven rugs with festive motifs.

  13. Park B. Smith Two-Prong Test 1) The article must be “closely associated” with a festive occasion. 2) The article be used or displayed principally during that festive occasion.

  14. Park B. Smith Two-Prong Test Additionally, the Court stated that the items must be “closely associated with a festive occasion” to the degree that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.”

  15. Post Park B. Smith The courts have made it quite clear that if a Heading has an exclusion for goods of Chapter 95 and the good was not excluded from Chapter 95 by some Chapter 95 note or exclusion, the good would be classified within Chapter 95.

  16. Russ Berrie & Co., Inc. v. U.S. (Fed. Cir. 2004) 1) The Russ Berrie case concerned imitation jewelry (lapel pins, earring sets) with festive motifs (Santa Claus, snowman adorned with holly, ghost, jack-o’-lantern, witch, etc). 2) Was the merchandise classifiable as imitation jewelry or as festive? 3) The court made a specific point: If there were no chapter note exclusions, relative specificity would apply.

  17. Relative Specificity (GRI 3) • When…goods are, prima facie, classifiable under two or more headings: • The heading which provides the most specific description shall be preferred to headings providing a more general description.

  18. Relative Specificity (GRI 3) • GRI 3 Further States: • A description by name is more specific than a description by class and • If the goods answer to a description which more clearly identifies them, the description is more specific than one where identification is less complete.

  19. Russ Berrie v. U.S. (Cont.) • Because heading 9505 covers a far broader range of items than heading 7117, heading 7117 is more specific than heading 9505. • Heading 7117 is also more specific because it describes the item by name (“imitation jewelry”) rather than by class (“festive articles”).

  20. Michael Simon Design, Inc.

  21. Michael Simon

  22. 9505.10 Decorative Articles Only • 9505.10 Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: • 9505.10.1010 Of glass . . . . . . . . . . . . . . . . . . . ………Free • Other: • 9505.10.1500 Of wood . . . . . . . . . . . . . . . . . . . . . …Free • 9505.10.25 00 Other…… . . . . . . . . . . . . . . . . . . .. . . . Free • 9505.10.3000 Nativity Scenes and figures thereof…..Free

  23. 9505.90.6000 • Festive Articles… Other: Other • Halloween, Easter, Thanksgiving, etc. • No Christmas Articles

  24. Chapter 95 Exclusions

  25. Explanatory Notes Exclusions • (a) Natural Christmas trees (Chapter 6) and by extension • Natural wreaths, garlands, foliage NYRL N054331 (2009) Garland comprised of real pine cones • (d) Christmas tree stands (classified according to constituent material) HRL 967741 (2006) Musical Christmas tree stand plays Christmas songs

  26. Explanatory Note Exclusions (c) Packagings of plastics or of paper, used during festivals (classified according to constituent material, for example Chapter 39 or 48) Gift bags/boxes with festive motifs considered packaging (NYRLs C80447 and I82478, noted.)

  27. Important Chapter Note Exclusions 1(a) Candles (heading 3406) Note modified in 2007 Previously excluded Christmas treecandlesonly

  28. Chapter 95 Exclusions 1(d) Sports bags or other containers of heading 4202, 4303, 4304 Trunks, suitcases…and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, bottle cases, jewelry boxes and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

  29. Trick or Treat Bags Trick or Treat Bags excluded via note 1(d) from classification in chapter 95. NYRL N067838 (2009).

  30. Important Chapter 95 Exclusions 1(f) Textile flags or bunting, or sails for boats, sailboards or land craft, of chapter 63 Flags are two-sided; able to see motif from both sides Flags have flag pole hooks and are generally rectangular If no pole hooks, may be a decorative wall hanging Classifiable in ch 95 if adorned with festive motifs

  31. Chapter 95 Exclusions Bunting of chapter 63 (other made up textile articles) Patriotic and festive decorations made from cloth, usually in the form of draperies, wide streamers, in the colors of the flag, etc.

  32. Parts of General Use 1(k) Parts of general use, as defined in note 2 to section XV, of base metal, or similar goods of plastics (chapter 39)

  33. Parts of General Use Frames and mirrors of base metal, of heading 8306 Includes photograph, picture or similar frames, of base metal Mirrors of base metal

  34. Picture/Photo Frame • Christmas tree base metal photo frame NYRL N016166 8306.30, HTSUS • Santa Claus plastic picture frame NYRL J86529 3924.90, HTSUS

  35. Base Metal • Subheading 8310.00.0000 – Sign plates, name plates, address plates and similar plates, numbers, letters and other symbols, and parts thereof, of base metal, excluding those of heading 9405

  36. Bells, Gongs 1(l) Bells, gongs or the like of heading 8306 HQ H118439 (4/23/12) revoked NYRLs J85472 (metal jingle bell wreath) & L85374 (hanging metal jingle bell decoration); reclassified from festive 9505.10 to articles of bells 8306.10. Also HQ H064916 (8/10/10) re: snowman metal bell wreath and HQ H055383 (1/14/10) re: door hanging string of metal jingle bells classified 8306.10, not 9505.10.

  37. Jingle Bell Wreath • HQ H118439

  38. HQ H118439 • (Jingle Bell Wreaths) articles made primarily of bells, including those made of jingle bells, are classified in heading 8306, HTSUS. See HQ H055383; HQ H064916. Articles are excluded from this heading if they merely incorporate bells. In the present case, the merchandise at issue does not simply incorporate bells. To the contrary, the bells are the whole merchandise. The language of heading 8306, HTSUS, “bells, gongs, and the like,” is expansive and encompasses this merchandise. The same language in the exclusion of Note 1(l) to Chapter 95, HTSUS, is similarly expansive and excludes the subject merchandise.

  39. Chimes or the like of heading 8306

  40. Electric Garland 1(t) Electric garlands of all kinds (heading 9405) An article is an electric garland if it is able to be hung or displayed and is composed of a string of light bulbs which are powered by an electrical source either attached by a power cord, battery or plug. HQ 963311 (10/19/2000)

  41. Electric Garlands • HQ H174519 (9/15/2011) Candy Corn Driveway Markers • HQ H068435 (10/16/2009) Snowflake Pathway Markers • HQ H036400 (11/21/2008) Winnie the Pooh and Snowman Pathway Markers

  42. Reminder • Remember: Even if an article seems classifiable in 9505, it is not classified in that heading if subject to a Chapter 95 exclusion. • Therefore, an electric garland with a festive motif is still excluded by Chapter Note 95(t), which excludes electric garlands of all kinds.

  43. Gloves, Mittens and Mitts • Excluded by note 1(u) to chapter 95 • N237045 (January 2013) Disney Princess Gloves classified as gloves under tariff subheading 6116.93.8800 • G87481 (March 2001) Man-Made fabric Horror Gloves with molded horror hands glued on the back of each glove classified as gloves under tariff subheading 6116.93.8800 • Oven mitts considered mitts

  44. Chapter 95 Exclusions • 1. This chapter does not cover: • (v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen, linen and similar articles having a utilitarian function (classified according to their constituent material). 1/ • 1/ See subheading 9817.95

  45. Chapter Note 95 1(v) 2007 Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). 1/

  46. Special Classification Provision9817 • Articles classifiable in subheadings 3924.10, 3926.90, 6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40, 9405.50, the foregoing meeting the descriptions set forth below: • 9817.95.05 Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.

  47. Utilitarian Items (3-D Rule) If the item is functional, the item MUST BE a three dimensional representation of a recognized festive motif (not just a silhouette) Some examples of utilitarian items are kitchen and tableware.

  48. Festive Foliage HQ 950999 Those artificial foliage items which qualify as Christmas articles of subheading 9505.10 include wreaths, garlands, candle rings, centerpieces -- complete articles -- made up of foliage commonly and traditionally associated with Christmas [i.e., artificial poinsettias, pine cones, pine needle leaves, evergreen branches, holly berries, holly leaves, laurel leaves, or mistletoe (singly or combination thereof)]. (This largely restates Customs position under the TSUS).

  49. Festive Foliage

  50. Festive Foliage At the present time, based on the information before us, there is no other artificial foliage traditionally associated with any other holiday. Hence, only Christmas foliage of the type described above is classifiable in heading 9505. The rest is classifiable in Chapter 67.

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