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HQ 088695


June 18, 1991

CLA-2 CO:R:C:F 088695 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

District Director of Customs
Federal Building, Room 198
N.W. Broadway & Glisan Sts.
Portland, Oregon 97209

RE: Protest No. 2904-90-000130; Inflatable Christmas Bell; Other Christmas Article of Subheading 9505.10.40; Not Christmas Ornament of Subheading 9505.10.25.

Dear Sir:

This is our decision regarding Application for Further Review of Protest No. 2904-90-000130, filed October 19, 1990, against your decision in the classification of a plastic Christmas bell entered on August 7, 1990, and liquidated on September 28, 1990.

FACTS:

The article at issue, item 7062, is a 12 inch, inflatable Christmas bell. It is of transparent vinyl construction with an inflation stem at the top. The body of the bell is green with a white caroling snowmen and Christmas tree motif encircling the shank of the bell. Inside the bell are two metal jingle bells about 3/4" in diameter that bounce around and make a jingling sound when the bell is handled or moves in the breeze. The article at issue is designed for indoor/outdoor use and has a loop for easy hanging.

You liquidated the Christmas bell in subheading 9505.10.40, HTSUSA, which provides for other Christmas articles. The protestant claims that the article is more properly classifiable in subheading 9505.10.25, HTSUSA, which provides for Christmas ornaments.

ISSUE:

Whether the article at issue is classsifiable as a Christmas ornament in subheading 9505.10.25, 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, and other entertainment articles." The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the scope of the headings. The Explanatory Note to heading 9505 indicates that:

(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 in heading 9505 tend to have no other function than decoration.

The article at issue is traditionally associated with Christmas and is decorative. Hence, it qualifies as a festive article classifiable in heading 9505.

Subheading 9505.10, HTSUSA, provides for articles for Christmas festivities. The article at issue is classifiable within this provision. We 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 at issue fails to satisfy the above-mentioned criteria. It is neither sold nor advertised as a Christmas tree ornament and is too large to be hung from a tree. While the article does incorporate a loop, the loop is designed to facilitate the hanging of the article not from a Christmas tree, but from the ceiling, a mantle, a banister, or a porch railing. Accordingly, the Christmas bell is not classifiable as a Christmas ornament of subheading 9505.10.25.

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

HOLDING:

The article at issue 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.

The protest should be denied in full. A copy of this decision along with the Notice 19 Form of Action should be forwarded to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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