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HQ 085517


November 24, 1989

CLA-2 CO:R:C:G: 085517 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500, 1404.90.0000

Ms. Debbie Zimmerman
Midwest Importers of Cannon Falls, Inc.
P.O. Box 20
Highway 52 South
Cannon Falls, MN 55009-0020

RE: Lighted Treetop Angel Figure, Hanging Santa Figure, Pine Cone Cabin

Dear Ms. Zimmerman:

Your letter of July 26, 1989, to our New York office has been referred to this office for reply concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of three items from your 1989 Christmas catalog, numbered 7751-2, 9288-3 and 1391-2. Samples of the merchandise were submitted with your ruling request.

FACTS:

The articles requiring classification consist of the following: (1) item no. 7751-2, at page 115, part 1 of the inquirer's catalog, described as, "Lighted Praying Angel, Tree Top;" (2) item no. 9288-3, at page 87, part 1 of the catalog, described as "Antiqued Plastic Delivering Gifts Santa Ornament;" and (3) item no. 1391-2, at page 18, part 1 of the catalog, described as "Pine Cone Cabin."

The lighted treetop praying angel measures 10-1/2 inches in height. Its head and hands are made of porcelain. The body of the subject figure is made of a funnel shaped piece of plastic, which is covered with a thin layer of soft foam. The clothing is constructed of manmade textile material and thoroughly covers the figure's body. A plastic ring, which holds several small Christmas tree type lights, is attached to the open end at the bottom of the figure's funnel shaped body. The lights are equipped with a plug, which is designed to be plugged into the lighting sets used on a Christmas tree. The country of origin of this item is said to be Taiwan. The importer states that this item's principal use is for decoration at the top of a Christmas tree.

The plastic Santa ornament is 6-1/2 inches tall. It depicts Santa in traditional red attire. A bag of toys is slung over the figure's right shoulder and a lantern is being held in his left hand. A gold loop is attached to the top of the toy bag on the figure's right shoulder, enabling the figure to be hung from a tree. This item is manufactured in China. The principal use of this item in the United States is stated by the importer to be for decoration on a Christmas tree.

The pine cone cabin is 5-1/2 inches tall, 4 inches wide, and 2-1/2 inches deep. It is constructed of pine cone material which is glued on a styrofoam frame. The principal use of this item in the United States is stated to be for decoration.

ISSUE:

Whether the subject articles are classifiable as Christmas ornaments within subheading 9505.10, HTSUSA, and, if not, how are they classified.

LAW & ANALYSIS:

The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order. The subheadings at issue in this case are:

(a) 9505.10.2500, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other;

(b) 9505.10.4000, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Of Plastics;

(c) 9505.10.5000, Festive, carnival or other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other; and

(d) 1404.90.0000, Vegetable products not elsewhere specified or included: Other.

The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision. With regard to Heading 9505, HTSUSA, the provision for festive articles, Explanatory Note 95.05, at p. 1590, states 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.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

For the most part, the items described above which fall under Heading 9505, HTSUSA, tend to have no function other than decoration.

It is Customs' position that an article which, by its shape, design and ornamentation is appropriately used in connection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA. To qualify as a Christmas ornament, Customs requires that the following three criteria be met: (1) that the item is marketed and sold as a Christmas tree ornament; (2) that there is some method, generally a loop attached to the top, to secure or hang the item on a tree; and (3) that the item is not too big or too heavy to be hung or attached to a tree. Two of the submitted samples, the treetop praying angel and the plastic Santa meet the above criteria. They are designed, marketed, sold and used as tree ornaments. Both the Santa and the angel depict characters that are traditionally associated with Christmas and Christmas trees. Both items clearly have a Christmas theme. They fall into a class of merchandise which, for tariff purposes, is separate and distinct from dolls. Therefore, pursuant to GRI 1, the subject treetop angel and plastic Santa are classifiable under subheading 9505.10.2500, the provision for Christmas ornaments, made of materials other than glass or wood.

The rustic pine cone cabin is a decorative item but has no clear Christmas theme. Although it may be associated with the Winter season, it is not an item that is traditionally associated with Christmas. Therefore, it cannot be classified under the Christmas article basket provision, subheading 9505.10.5000, HTSUSA. Instead, it is classifiable under the provision which most accurately describes it. Because no provision squarely describes the pine cone cabin, reference to the subsequent GRI's is necessary. GRI 2(b) requires that the classification of goods made of more than one material shall be according to GRI 3. Because the pine cone cabin is made of styrofoam and pine cone components, GRI 3(a) requires that this composite article be classified according to GRI 3(b). GRI 3(b) states that goods which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character.

Here, the essential character of the pine cone cabin is imparted by the pine cone material which covers the entire outer surface of the article. Accordingly, the pine cone cabin is classifiable under the provision for vegetable products not elsewhere specified or included, within subheading 1404.90.0000, HTSUSA.

HOLDING:

In accordance with the rationale set forth above, the treetop lighted praying angel figure and Santa ornament are classifiable under subheading 9505.10.2500, HTSUSA, the provision for Christmas ornaments of materials other than glass or wood. Items classified under this subheading are subject to a duty rate of 5 percent ad valorem.

The subject pine cone cabin is classifiable under subheading 1404.90.0000, HTSUSA, the provision for vegetable products not elsewhere specified or included.

Sincerely,

John Durant, Director
Commercial Rulings Division

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