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HQ 089095


July 16, 1991

CLA-2 CO:R:C:F 089095 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

Mr. John R. Ramirez
Vice President
James G. Wiley Co.
P.O. Box 90008
Los Angeles, CA 90009-0008

RE: Christmas Advent Calendar from China; Festive Article of Heading 9505.

Dear Mr. Ramirez:

This is in response to your letter of March 14, 1991, requesting the proper classification of the "Advent House," a Christmas advent calendar, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have received the sample forwarded with your request.

FACTS:

The sample before us, item C-1124, is an advent calendar made of multi-layered flexible vinyl sheeting. It measures approximately 2-1/2 x 3 feet in size and is designed to be hung on a wall. The article's front features a printed picture of a gingerbread house with the phrase "Santa's Candy Shop" posted above the doorway; printed depictions of gingerbread cookies, ice cream sandwiches, gum drops, candy canes, a Christmas tree, wreath, snowman and reindeer surround the house. Its front is also scored in various locations to allow for the easy removal of circular portions which can then be used as Christmas tree ornaments. Individually hole-punched and printed with pictures on both sides, the tear-off circular portions are numbered from 1 to 24 and are removed in sequential order, through Christmas Eve, beginning the first day of December. The wall hanging itself remains intact after the ornaments are removed as another layer of plastic, also printed with pictures, backs them.

The article in question comes packaged in a cardboard box. The words "Advent House" are in bright red and appear at the top of the front of the box. On the back, the box reads:

Christmas is almost here! Let's share the joyous season with our families and count down the days to Christmas using Sunco's
Advent Activity Calendar. Beginning with the first of December, peel off one suprise every day as numbered. When you come to the last suprise, it will be Christmas Eve. Happy Holidays!

ISSUE:

What is the proper classification of the subject article under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in interpreting the scope of the HTSUSA headings. The Explanatory Note to heading 9505 indicates 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.

Items classifiable as festive articles in heading 9505 tend to serve no other purpose than decoration.

The article at issue is decorative. Moreover, advent calendars are traditionally used at Christmas festivities. The advent calendar before us, therefore, is classifiable as a festive article in heading 9505, HTSUSA.

Subheading 9505.10, HTSUSA, provides for articles for Christmas festivities. The article at issue is classifiable within this provision. We must now turn our attention to its proper classification at the eight-digit subheading level.

Subheadings 9505.10.10, 9505.10.15, and 9505.10.25 cover Christmas ornaments of glass, wood, and other, respectively. To qualify as a Christmas ornament, Customs requires that the following three criteria be met:

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

2. that there is some method, generally a loop attached to the top, to 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.

The article in question, as described above, fails to meet the stated criteria. Consequently, it is not classifiable as a Christmas ornament of plastic in subheading 9505.10.25, HTSUSA. We recognize that portions of the advent calendar are eventually tranformed into Christmas tree ornaments. Nonetheless, it is a cardinal principal of Customs law that absent disguise or fraud, imported merchandise must be classified with reference to its condition as imported. In its condition as imported, the article at issue is an advent calendar; hence, it must be classified under the provision which best describes that product.

Subheading 9505.10.30, HTSUSA, covers nativity scenes and figures thereof. The article in question is neither a nativity scene nor a part thereof. Subheading 9505.10.40, HTSUSA, covers other Christmas articles of plastics. This provision best describes the article at issue.

HOLDING:

Item C-1124 is classifiable in subheading 9505.10.4000, HTSUSA, which provides for festive, carnival or other entertainment articles; articles for Christmas festivities: other: of plastics. The applicable rate of duty is 8.4 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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