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HQ 956584




December 12, 1994

CLA-2 CO:R:C:F 956584 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.25

District Director of Customs
1 East Bay Street
Savannah, Georgia 31401

RE: Decision on Application for Further Review of Protest No. 1703-94-100048, filed April 26, 1994, concerning the classification of plastic Christmas decorations.

Dear Sir:

This is a decision on a protest filed April 26, 1994, against your decision in the classification and liquidation of Christmas decorations that were entered in September 1993.

FACTS:

You classified the items under subheading 9505.10.40, Harmonized Tariff Schedule of the United States (HTSUS), the provision for "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Other: Of plastics," with an applicable duty rate of 8.4 percent ad valorem.

Protestant claims that the goods should be classified under subheading 9505.10.25, HTSUS, the provision for "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Christmas ornaments: Other: Other," with an applicable duty rate of 5 percent ad valorem.

The samples, identified by item nos. 2251225, 2251227, 2251229, 2251894, and 2251956, are plastic items in the shapes of reindeer, snowflakes, angels, doves, candy canes, each with a hanger allowing the article to be suspended. The items are packaged in header cards that are either red and green, or red and gold in color, and are advertised and sold as Christmas ornaments. -2-

ISSUE:

Whether the articles are classified in subheading 9505.10.40, HTSUS, as Christmas articles other than ornaments, or in subheading 9505.10.25, HTSUS, as Christmas ornaments.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system 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 Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non- durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and -3-

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the figures to be made of non-durable material (since they are not designed for sustained wear and tear, nor are they purchased because of their extreme worth or value). The items are also primarily decorative in function.

With respect to the third criterion, we do not find items such as snowflakes, doves, candy canes, etc., to be traditionally associated with Christmas. However, as noted above, decorative articles for Christmas trees (e.g., Christmas tree ornaments) are traditionally associated with Christmas. Therefore, if these items qualify as Christmas tree ornaments, it is not necessary that they clearly demonstrate a Christmas motif.

To be classified as a Christmas ornament, Customs requires that an article meet the following three criteria:

1. that the item be advertised and sold as a Christmas tree ornament;

2. that there be some method, generally a loop attached to the top, to hang the item on a tree; and

3. that the item not be too big or too heavy to be hung or attached to a tree.

We previously noted that the items are advertised and sold as Christmas tree ornaments, and that each one has a hanger from which it may be suspended. We also find that the items are not too big or too heavy to be hung or attached to a tree. It is our determination that the goods qualify as Christmas ornaments and are classified in subheading 9505.10.25, HTSUS, the provision for Christmas ornaments of material other than glass or wood.

HOLDING:

The Christmas ornaments identified by item nos 2251225, 2251227, 2251229, 2251894, and 2251956 are classified in subheading 9505.10.25, HTSUS, the provision for "Festive, -4-
carnival or other entertainment articles...: Articles for Christmas festivities...: Christmas ornaments: Other: Other." The applicable duty rate is 5 percent ad valorem.

Since reclassification of the merchandise as indicated above will result in a rate of duty lower than the liquidated rate, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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