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HQ 089335


June 24, 1991

CLA-2 CO:R:C:F 089335 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

Ms. April Hartshorn
Import Manager
Seasonal Specialties
400 N. Lilac Drive
Golden Valley, MN 55422

RE: Artificial Christmas Trees; Not Christmas Ornament of subheading 9505.10.25; Other Christmas Article of subheading 9505.10.40; Revocation of NYRL 828559.

Dear Ms. Hartshorn:

This is in response to your letter of April 24, 1991, requesting the proper classification of various artificial Christmas trees under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples were forwarded with your request.

FACTS:

The merchandise at issue consists of:

1. Item TO4137 -- a 7.5' hand wrapped and hooked Jamestown Pine Tree with one twist top, metal stand and 3832 round tips.

2. Item TO4195 -- a 7' hand wrapped and hooked Frosted Boston Pine Tree with metal stand and 975 flat tips.

3. Item TO4061 -- a 7' wrapped and hooked Angel Pine Tree with one hinged top,
1510 cone tips and metal stand.

ISSUE:

Whether artificial Christmas trees are classifiable as Christmas ornaments in subheading 9505.10.25, HTSUSA, or as other Christmas articles in subheading 9505.10.40, 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 schedule 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.

The Explanatory Note to heading 9505 expressly includes artificial Christmas trees among those articles deemed exemplars of heading 9505. Consequently, items TO4137, TO4195, and TO4061 are appropriately classifiable as festive articles in heading 9505.

Subheading 9505.10, HTSUSA, provides for articles for Christmas festivities. The items at issue are classifiable within this provision. We must now turn our attention to their 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.

Obviously, the items a issue cannot satisfy the above-mentioned requirements. Consequently, they are not classifiable as Christmas ornaments in subheading 9505.10.25, HTSUSA.

Subheading 9505.10.30, HTSUSA, covers nativity scenes and figures thereof. The items at issue are neither nativity scenes nor parts thereof. Subheading 9505.10.40, HTSUSA, covers other Christmas articles of plastics. This provision best describes the artificial Christmas trees.

In New York Ruling Letter (NYRL) 828559 issued March 14, 1988, you were informed that item 04011, a full-size artificial Christmas tree, was classifiable as a Christmas ornament in subheading 9505.10.2500, HTSUSA. In light of the newly adopted three-pronged criteria for Christmas ornaments, that item is no longer classifiable in subheading 9505.10.2500, HTSUSA. Instead, it is classifiable in subheading 9505.10.4000, HTSUSA.

HOLDING:

Items TO4137, TO4195, and TO4061 are 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.

Item 04011 of NYRL 828559 is classifiable in subheading 9505.10.4000, HTSUSA, and is dutiable at 8.4 percent ad valorem.

This letter to you should be considered a revocation of NYRL 828559 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 828559 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your company's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 828559 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your company may, at its
discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director

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