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HQ 089893

October 10, 1991
CLA-2 CO:R:C:F 089893 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

Ms. Lori Aldinger
Import Coordinator
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE: Decorative Bow with Plastic Foliage; Festive Article under Heading 9505, HTSUSA

Dear Ms. Aldinger:

This is in response to your letter of June 12, 1991, submitted on behalf of Rite Aid Corporation, regarding the proper classification of a gold decorative bow, style #91791, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted a sample with your request for a binding ruling.

FACTS:

The item measures approximately seven inches by twelve inches. It is made from four lengths of man made fiber ribbon approximately two inches in width. Two lengths of ribbon are folded and crossed into an "X" shape to form loops. The two ends are made from the remaining lengths of ribbon. The bow and ends are stapled at the center where, in place of a knot, a plastic foliage arrangement is attached to the ribbon by means of a plastic tie. The plastic tie extends from the back of the bow approximately two and a half inches. The plastic foliage arrangement at the center of the bow consists of holly leaves, red and gold berries, pine foliage, imitation pine cones, two plastic bells and a miniature gift package. The importer will be packaging the bow in a polyethylene bag with insert and header cards reading "Christmas Decorative Bow."

ISSUE:

Whether the decorative bow is classified as a festive article under heading 9505, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported 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 GRI's may then be applied.

Heading 9505, HTSUSA, pertains, in part, to "festive, carnival or other entertainment articles." The Explanatory Notes represent the official interpretation of the tariff at the international level and offer guidance in understanding the scope of the heading. The Explanatory Note to heading 9505, HTSUSA indicates that this 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., 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, HTSUSA, tend to serve no other function than decoration.

The item at issue is both decorative and traditionally associated with the Christmas holiday. Consequently, it is classifiable as a festive article in heading 9505, HTSUSA.

As for the proper classification of the item at the subheading level, subheadings 9505.10.1000, 9505.10.1500 and 9505.10.2500, HTSUSA, cover Christmas ornaments of glass, wood and other, respectively. Customs requires that the following three criteria be met for an item to qualify as a Christmas ornament:

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 (HRL 089320)

Although the article may not be too big or heavy to be attached to a tree, there is no loop attached to its top which suits this purpose nor is the item advertised and sold as a Christmas tree ornament. In essence, there is no showing that the item is, in fact, used as an ornament. Consequently, the item is not classifiable as a Christmas ornament in subheadings 9505.10.1000, 9505.10.1500 or 9505.10.2500, HTSUSA.

Finally, subheading 9505.10.4000, HTSUSA, covers other Christmas articles of plastics while subheading 9505.10.5000, HTSUSA, provides for other Christmas articles, other (than of plastics). In accordance with GRI 6, GRI 3(a) explains, in pertinent part, that:

[W]hen goods are, prima facie, classifiable under two or more [sub]headings, the articles are to be classified under the [sub]heading which provides the most specific description of the good in question. All [sub]headings are regarded as equally specific, however, when each refers to part only of the goods....

In this case, each of the subheadings at issue, subheading 9505.10.4000 and 9505.10.5000, refer to only part of the subject merchandise. Since the headings are, thus, regarded as equally specific, we do not classify article by GRI 3(a) but rather by GRI 3(b).

GRI 3(b) provides that articles made up of different components shall be classified as if they consisted of the component which gives them their essential character. "Essential character" has been construed to mean the attribute which strongly marks or serves to distinguish what an article is. Explanatory Note VIII to GRI 3(b) explains that bulk, quantity, weight, value or the role of the constituent material in relation to the use of the item are indicia of essential character.

The plastic holly, pine foliage, berries, imitation pine cones, bells and miniature gift box provide the essential character of the item. The fiber ribbon bow is thin and flimsily constructed. Thus, the plastic foliage distinguishes what the item is and provides the bulk and weight of the item. The article is, therefore, classifiable under subheading 9505.10.4000, HTSUSA.

HOLDING:

The decorative bow is properly classified under subheading 9505.10.4000, HTSUSA, which provides for festive, carnival or other entertainment articles, articles for Christmas festivities: other (than Christmas ornaments): other: of plastics. The general column one rate of duty is 8.4 percent ad valorem.

Sincerely,


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