HQ 0086362 - Reconsideration and Modification of Pre-entry classification PC 846078; Christmas ornaments - United States International Trade Commision Rulings

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HQ 086362

May 17, 1990

CLA-2 CO:R:C:G 086362 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Ms. Debbie Zimmerman
Import Coordinator
Midwest Importers of Cannon Falls, Inc.
Post Office Box 20
Cannon Falls, MN 55009-0020

RE: Reconsideration and Modification of Pre-entry classification PC 846078; Christmas ornaments

Dear Ms. Zimmerman:

This letter is in response to your request for a reconsideration of PC 846078, a pre-entry classification, dated November 22, 1989, issued by the Area District Director of the Western Great Lakes Area, concerning the tariff classification of various Christmas ornaments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample of a wood nativity pyramid as well as two mini wood pyramids were submitted along with your request for reconsideration.

FACTS:

In Customs pre-entry classification of the sample articles (PC 846078), dated November 22, 1989, the Area District Director of the Western Great Lakes Area classified various Christmas ornaments. The importer maintains that the sample wood pyramids and candleholders are used strictly for decoration rather than for any utilitarian purpose. Thus, the importer argues that these articles were improperly classified in the pre-entry ruling determination and that the merchandise is more properly classified under subheading 9505.10.15, as festive articles.

The following is a list of the style numbers and pre-entry classification numbers of those articles which are in dispute and which are the subject of this reconsideration:

Style No. Description Tariff No.
001-8 Wood Pyramid 9405.50.4000
0013-3 Wood Pyramid 9405.50.4000
0020-8 Wood Pyramid 9405.50.4000
0028-2 Wood Pyramid 9405.50.4000
0051-3 Wood Pyramid 9405.50.4000
0088-6 Wood Pyramid 9405.50.4000
0089-4 Advent House 9405.50.4000
0107-4 Advent House 9405.50.4000
6106-0 Wood Pyramid 9405.50.4000
7632-4 Wood Pyramid 9405.50.4000
0052-1 Wood Pyramid 9405.50.4000
5752-1 Wood Pyramid 9405.50.4000
6021-0 Wood Pyramid 9405.50.4000
6107-8 Wood Pyramid 9405.50.4000
7633-2 Wood Pyramid 9405.50.4000
7639-0 Wood Chandelier Pyr.9405.50.4000
7665-5 Wood Pyramid 9405.50.4000
8857-5 Wood Pyramid 9405.50.4000
8859-3 Wood Pyramid 9405.50.4000
8860-0 Wood Pyramid 9405.50.4000
0004-2 Wood Pyramid 9405.50.4000
0006-8 Wood Pyramid 9405.50.4000
0007-6 Wood Pyramid 9405.50.4000
0008-4 Wood Pyramid 9405.50.4000
0020-8 Wood Pyramid 9405.50.4000
0046-4 Wood Pyramid 9405.50.4000
0047-2 Wood Pyramid 9405.50.4000
0050-5 Wood Pyramid 9405.50.4000
0053-9 Wood Pyramid 9405.50.4000
0071-1 Wood Pyramid 9405.50.4000
0022-4 Wood Pyramid 9405.50.4000
0027-4 Wood Pyramid 9405.50.4000
0033-1 Wood Pyramid 9405.50.4000
0036-5 Wood Pyramid 9405.50.4000
0037-3 Wood Pyramid 9405.50.4000
0038-1 Wood Pyramid 9405.50.4000
0039-9 Wood Pyramid 9405.50.4000
0041-4 Wood Pyramid 9405.50.4000
0045-6 Wood Pyramid 9405.50.4000
0074-5 Wood Pyramid 9405.50.4000
0079-5 Wood Pyramid 9405.50.4000
0080-2 Wood Pyramid 9405.50.4000
0090-1 Wood Pyramid 9405.50.4000
6129-2 Wood Pyramid 9405.50.4000
6131-7 Wood Pyramid 9405.50.4000
7634-0 Wood Pyramid 9405.50.4000
8798-3 Wood Pyramid 9405.50.4000
0003-4 Wood Pyramid 9405.50.4000
0012-5 Wood Pyramid 9405.50.4000
0063-8 Wood Pyramid 9405.50.4000
6128-4 Wood Pyramid 9405.50.4000
6130-9 Wood Pyramid 9405.50.4000
6132-5 Wood Pyramid 9405.50.4000
7499-8 Wood Pyramid 9405.50.4000
7500-3 Wood Pyramid 9405.50.4000
7501-1 Wood Pyramid 9405.50.4000
7502-9 Wood Pyramid 9405.50.4000
7631-6 Wood Pyramid 9405.50.4000
7635-8 Wood Pyramid 9405.50.4000
7636-6 Wood Pyramid 9405.50.4000
7659-8 Wood Pyramid 9405.50.4000
5975-0 Wood Santa
Candleholder 9405.50.4000
0463-0 Angel
Candleholder 9405.50.4000
0472-1 Angel
Candleholder 9405.50.4000
0606-6 Advent
Candleholder 9405.50.4000
6082-2 Santa
Candleholder 9405.50.4000
0400-2 Advent
Candleholder 9405.50.4000
0409-4 Carved St. Nick
Candleholder 9405.50.4000
0423-4 Santa
Candleholder 9405.50.4000
0432-5 Village Advent
Candleholder 9405.50.4000
7640-7 Nativity
Candleholder 9405.50.4000

ISSUE:

Whether the sample Christmas wood pyramids and wood candlestick holders are properly classified under subheading 9405.50, HTSUSA, as non-electrical lamps and lighting fittings, or under subheading 9505.10, HTSUSA, as articles for Christmas festivities and parts and accessories thereof.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order. The subheadings at issue in this case are the following:

(a) 9405.50, Non-electrical lamps and lighting fittings: Incandescent lamps designed to be operated by propane or other gas, or by compressed air and kerosene or gasoline: Other: Other.

(b) 9505.10, 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.

The wood pyramids and decorative candlestick holders were classified as non-electrical lamps and lighting fittings under subheading 9405.50, HTSUSA, in the pre-entry classification determination conducted by the Area Director of the Western Great Lakes Area. However, the sample merchandise is also considered to be a traditional Christmas decoration and is included within subheading 9505.10, HTSUSA, as a festive article. Because both of the subheadings set forth above appear to describe the subject merchandise, and classification cannot be determined by applying GRI 1 alone, reference to the subsequent GRI's is necessary.

When, as here, goods are prima facie classifiable under two or more headings, GRI 3 is applicable. GRI 3(a) provides that:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. . . .

Therefore, the inquiry in the instant case centers on the determination of which of the competing provisions most accurately describes the subject wood pyramids and candlestick holders.

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 (A) to Heading 9505, HTSUSA, at page 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.

It is Customs' position that an article by its shape, design, ornamentation and appropriate use in conection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA, In the instant case, the "Old World Pyramids" and the hand-carved wood candlestick holders are ornamental examples of German woodworking craftmanship. Although the candlestick holders and some of the larger wood pyramids are equipped to hold burning candles, all of the merchandise is primarily decorative and ornamental in nature. The articles are intended to be displayed in the home during the Christmas season, since they depict scenes (such as nativity scenes and angel scenes) which have traditionally been associated with the Christmas season. Moreover, they are marketed and sold to the consumer during Christmas.

With regard to Heading 9405, HTSUSA, this provision covers non-electrical lamps and lighting fittings. Articles included in this heading are generally designed for the illumination of a room. Based on the information you submitted and our own examination of the goods, we have determined that the sample pyramids and candlestick holders are not primarily used for illumination. In the case of the larger wood pyramids, the movement of the pyramid blades is dependent upon the rising heat of burning candles. However, some of the small wood pyramids do not have holders for candles and the blades are designed in such a way that they operate by the force of the wind. None of the pyramids and candleholders are imported and sold with candles. Furthermore, these articles are not meant to be used in the home as primary sources of light. Due to the size of the wood blades at the top of the wood pyramid, they are susceptible to scorching or combustion if the candles remain lit for any length of time. The candlestick holders are made of wood with handcarved wood figures decorating the base of the holder. While they are decorative articles which are designed to hold candles, they are also subject to combustion if they remain lit for any extended period of time. Thus, the amount of time that the pyramids and the candlestick holders are actually used to provide light is relatively insignificant to the amount of time that they are used as Christmas ornaments.

When comparing the two competing four digit headings, it is our position that both the wood pyramids and the candlestick holders should be classified under Heading 9505, HTSUSA. Since Heading 9505.10, HTSUSA, applies specifically to Christmas decorations, while 9405.40, HTSUSA applies generally to lamps and lighting fittings, it is our position that the Christmas article provision more specifically describes the sample articles at issue.

The final issue to address is which eight digit category provides for the wood pyramids and candlestick holders. To qualify as a Christmas ornament under subheading 9505.10.15 or 9505.10.25, HTSUSA, Customs requires that the article be a tree ornament and must satisfy the following three criteria: (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; (3) that the item is not too big or too heavy to be hung or attached to a tree. Since none of the articles at issue have a loop attached to the top to fasten them to a Christmas tree, they are precluded from classification under the subheading 9505.10.15, HTSUSA, which provides for Christmas ornaments. All other Christmas decorative articles which are not nativity scenes and figures thereof and which are not designed for the tree are classifiable under the provision for "Articles for Christmas festivities: Other," under subheading 9505.10.4000 or 9505.10.5000, HTSUSA, depending upon the constituent material of the article.

HOLDING:

Based on the foregoing analysis, the subject wood pyramids and Christmas candlestick holders are properly classifiable under subheading 9505.10.5000, HTSUSA, the provision for Christmas articles, other, of other than plastic. Items classified under this subheading are subject to a duty rate of 5.8 percent ad valorem.

The pre-entry classification determination is hereby modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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