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HQ 964424




October 31, 2000

CLA-2 RR:CR:TE 964424 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.9530

Ms. Laura Deniz
Evans and Wood & Co., Inc.
P.O. Box 610005
DFW Airport, TX 75261

RE: Request for reconsideration of NY F87578: Classification of “mum backer”

Dear Ms. Deniz:

This is in response to your letter, dated June 27, 2000, on behalf of Audria’s Crafts, requesting reconsideration of Customs New York Ruling (NY) F87578 which classified a product identified as a “mum backer” under the Harmonized Tariff Schedule of the United States Annotated. A sample was submitted to this office for examination.

FACTS:

You have submitted a sample identified as a “mum backer”. This item consists of a 6 inch diameter piece of circular cardboard to which ribbon streamers have been sewn. The streamers are approximately 2 ½ feet in length and ribbon points (triangular shaped) surround the cardboard’s perimeter. The ribbon is constructed of woven acetate and is approximately 1 ¼ inches in width. No style designation has been provided. The “mum backer” is unfinished and the center of the cardboard circle is blank. When NY F87578 was issued, the importer had indicated that the country of origin was Taiwan and that the unfinished items would be used as corsages at “Homecoming” football games to which a mum and various charms, whistles and other items could be attached. At this time, we note that the stated country of origin will be either Hong Kong or China and that the items can be either affixed to outside clothing, carried in hand, attached to a garter, or decorated as keepsakes.

In NY F87578 dated June 13, 2000, the subject item was classified in subheading 6217.10.9530, HTSUSA, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers.” This provision is dutiable under the general column one rate at 15 percent ad valorem with a corresponding textile quota category of 659.

You disagree with this classification and claim that the subject goods are used as festive items due to the streamers and noisemakers that are attached and are therefore classifiable in subheading 9505.90.6000, HTSUSA, as “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” This provision is duty free under the general column one rate of duty. You also suggest classification in subheading 6307.90.9989, HTSUSA, as “Other made up articles, including dress patterns: Other: Other: Other, Other: Other” which is dutiable under the general column one rate at 7 percent ad valorem. Further, in a telephone communication with Customs, you indicated that the article may be classifiable in heading 6702, HTSUSA, as part of an artificial flower.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

It is stated in GRI 2(a) that “Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.” It is Customs determination that the subject item, in an unfinished condition at the time of importation, is sufficiently complete to give the article the essential character for which it is to be used. One only needs to attach the mum or other decorative item and selected accessories to complete the item to their own satisfaction.

The Court of Appeals for the Federal Circuit (CAFC) issued on August 14, 1997, its decision on the appeal and cross-appeal of the Court of International Trade’s decision in the case of Midwest of Cannon Falls, Inc. v. United States, F.3d 1423 (Fed. Cir. 1997), Ct. Int’l Trade, LEXIS 15 (1996). Classification of merchandise as “festive articles” under heading 9505, HTSUSA, now rests on the satisfaction of the guidelines set forth in Midwest. In general, merchandise is classifiable in heading 9505, HTSUSA, as a “festive article” when the article, as a whole:

Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and Is associated with or used on a particular holiday.

Thus, the Midwest case (supra) established a three prong test and expanded the number and types of items which will now be classifiable as “festive articles” in heading 9505, HTSUSA. However, Midwest also set forth the following restrictions in classifying merchandise under heading 9505, HTSUSA:

The items must be advertised and sold to consumers before the particular holiday with which they are associated. The items must be used in celebration of and for entertainment on a joyous holiday.

The Midwest decision recognized the following festive occasions as “holidays”: Christmas, Valentine’s Day, Easter, Halloween, and Thanksgiving. In the instant case, the “mum backer” is not advertised, sold, or associated with any of the “holidays” recognized by the court in the Midwest case. As such, it has failed to meet the criteria established in Midwest and is not classifiable as a “festive article” under heading 9505, HTSUSA. See HQ 961728, dated April 8, 1999, which classified certain novelty hats under subheading 6505.90.60, HTSUSA, the provision for “[h]ats and other headgear” because no evidence had been provided that the hats were used in celebration of and for entertainment of a recognized holiday; therefore, they could not be classified as “festive articles” under heading 9505, HTSUSA. Inasmuch as Customs has classified the subject item as an “accessory’, it is also important to note that, HQ 961833, dated May 19, 1999, addressed the scope of Midwest and concluded that “articles of personal adornment” did not fall within the scope of heading 9505, HTSUSA.

You have also proposed classification in heading 6702, HTSUSA, which provides for “Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage or fruit.” However, the “mum backer”, in its imported and unfinished condition, is not a distinguishable part of a flower, foliage, or fruit. The cardboard disk with pointed ribbon and ribbon streamers could be decorated in a variety of ways that may not include the attachment of a mum or other flower. Certainly, there are no flowers or parts of flowers anywhere on the article at the time of importation.

The “mum backer” is comprised of two different materials. Accordingly, GRI 3(b) must be applied, which states: “Mixtures, composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” In relevant part, the EN to GRI 3(b) provides:

(VIII). The factor which determines the essential character will vary as between different kinds of goods. It may, for example, 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 goods.

Pursuant to GRI 3(b), in assessing the essential character of the subject item, we note that the “mum backer “ is constructed of two cardboard disks (with a hole in the center) which have been decorated with shaped pointed ribbons of multiple colors stapled along the periphery of the disk to form two layers of alternating ribbon colors. Ribbon streamers in coordinating colors have been stapled and then glued to the cardboard disks. The samples have cardboard disks of various sizes and ribbon streamers that descend in equal lengths from approximately 16 inches to 32 inches. Each sample has been decorated with 20 ribbon streamers. Clearly, the ribbon is the predominant decorative feature of the “mum backer” at the time of importation. Thus, it is the textile fabric of the ribbon that imparts the essential character to this item.

Although you have suggested classification in heading 6307, HTSUSA, which provides for “other made up articles, including dress patterns” of textile, the EN for 6307 specifically notes that “This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.” As such, we must first consider whether the item is properly classifiable as an accessory to clothing in heading 6217, HTSUSA, before we can contemplate classification under heading 6307, HTSUSA.

The EN to 6217 states that the heading covers made up textile clothing accessories such as labels, badges, emblems, “flashes” and the like. The subject “mum backer” is very much like a badge or emblem in that it is designed to be pinned to clothing as a decorative display of affiliation or connection with a specific organization. In this case, the individual’s football or sport teams. In order to be classified as a clothing accessory under 6217, HTSUSA, Customs has held that an article must be clearly intended for use solely or principally as an accessory to clothing. Items used solely or principally for other purposes would not be classified as accessories and would not fall in Heading 6217, HTSUSA. See HQ 950659, dated January 21, 1992. In the instant case, it is our determination that while the use of the “mum backer” as a keepsake is optional, it is primarily intended as an article of personal adornment to be pinned on clothing and worn during a sporting event. In this regard, Customs has classified textile pins in the past and has consistently classified them as “clothing accessories” in the appropriate provisions of heading 6217, HTSUSA. See HQ 080498, dated December 28, 1989, HQ 958167, dated August 30, 1995, HQ 960401, dated July 16, 1997, HQ 962054, dated January 14, 2000, and HQ 963452, dated April 20, 2000.

In view of the foregoing, it is our determination that the subject article, identified as the “mum backer”, was correctly classified in NY F87578 as clothing accessories in heading 6217, HTSUSA. The ribbon streamers of the “mum backer” are constructed of woven acetate, which is a man-made fiber. Thus, the subject merchandise is classifiable as an accessory of man-made fibers under subheading 6217.10.9530, HTSUSA.

HOLDING:

The subject merchandise is correctly classified in subheading 6217.10.9530, HTSUSA, which provides for, “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers.” The general column one duty rate is 15 percent ad valorem. The textile category is 659. NY F87578 is affirmed.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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