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HQ 086302


March 8, 1990

CLA-2 CO:R:C:G: 086302 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500, 9505.10.4000

Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
United States Customs Brokers
1809 Baltimore Avenue
Kansas City, MO 64108

RE: Modification of New York Ruling 845357 classifying an artificial Christmas tree

Dear Mr. O'Neill:

Upon review by our office of New York Ruling Letter (NYRL) 845357, issued September 25, 1989, we have determined that the subject artificial Christmas tree, made primarily of plastic, was improperly classified under subheading 9505.10.2500 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This action is taken pursuant to the Customs Regulations, 19 CFR Section 177.9(d). This office hereby modifies NYRL 845357, and issues this ruling reclassifying the artificial Christmas tree, made primarily of plastic, under subheading 9505.10.4000, HTSUSA, the provision covering other Christmas articles, of plastic.

FACTS:

The submitted sample, imported from Taiwan, is stated to be a 7 foot tall artificial deluxe Scandinavian fir Christmas tree (stock number 80701), which is composed primarily of plastic.

LAW & ANALYSIS:

NYRL 845357, dated September 25, 1989, classified the subject artificial Christmas tree in the provision for other Christmas ornaments, under subheading 9505.10.2500, HTSUSA. Upon review of NYRL 845357 and the tariff nomenclature, it is apparent that another HTSUSA provision more accurately describes the subject merchandise.

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. GRI 6 requires application of the same GRI principles at the subheading level. The subheadings at issue here 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.

The distinction between the two subheadings at issue concerns the scope of the term "Christmas ornaments." As expressed in several recent Customs Headquarters Rulings, 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. Here, the artificial Christmas tree does not meet the criteria to be considered a Christmas ornament for tariff classification purposes. Although the subject tree is considered to be an "article for Christmas festivities," it cannot, for classification purposes, be considered a "Christmas ornament." Rather, it is properly classifiable as an other article for Christmas festivities, made of plastic, under subheading 9505.10.4000, HTSUSA.

HOLDING:

Pursuant to Section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)), NYRL 845357, which classified the subject artificial Christmas tree as a Christmas ornament under subheading 9505.10.2500, HTSUSA, is hereby modified. For the reasons set forth above, the subject artificial

Christmas tree is properly classifiable under subheading 9505.10.4000, HTSUSA, as an other article for Christmas festivities, of plastic. Items classified under this subheading are subject to a duty rate of 8.4 percent ad valorem. NYRL 845357 is modified accordingly.

This modification is effective immediately but will have no retroactive effect. A copy of this ruling letter is being circulated to the ports concerned. A copy of this ruling letter should also be attached to the entry documents filed at the time this type of merchandise is imported.

Sincerely,

John Durant, Director
Commercial Rulings Division

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