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HQ 951347


October 2, 1992

CLA-2 CO:R:C:F 951347 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Mr. Charles Laber
Assistant Import Manager
Silvestri Corporation
2720 North Paulina Street
Chicago, IL 60614

RE: Modification of NYRL 834984; Christmas stocking in 9505.10.5000, HTSUSA; Festive article, for Christmas festivities, other than Christmas ornaments.

Dear Mr. Laber:

In New York Ruling Letter (NYRL) 834984, issued January 3, 1989, a Christmas stocking, imported from China, was classified in subheading 9505.10.2500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles,...: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other." We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

FACTS:

The article at issue, a "Santa Christmas Stocking," item number 53714, is of wool and measures approximately 13 inches long. It has a textile loop, for hanging, stitched to its top right end. The front exterior of the stocking is yarn dyed to depict the face of Santa Claus, and also is designed with a teddy bear and a Christmas gift.

ISSUE:

Whether the Christmas stocking is classifiable in subheading 9505.10.2500 as a festive article, for Christmas festivities, Christmas ornaments, other, other, or is classifiable in subheading 9505.10.5000 as a festive article, for Christmas festivities, other (than Christmas ornaments), other.

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. Most 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. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate 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....

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

First, the Christmas stocking is made of non-durable material. Customs will consider an article, such as the Christmas stocking, to be made of non-durable material since it is not designed for sustained wear and tear, nor is it purchased because of its extreme worth or value (as would be the case with a decorative, yet costly, piece of art or crystal).

Next, the article's primary function is decorative, as opposed to, utilitarian. It is apparent, the Christmas stocking serves no useful function besides its role as a decoration.

Finally, when examining the Christmas stocking, as a whole, it is evident that the article is traditionally associated or used with the particular festival of Christmas. Christmas stockings are cited in the EN's to 9505, as exemplars of traditional, festive articles.

Subheading 9505.10 includes articles for Christmas festivities. As for the proper classification of the Christmas stocking 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 Christmas stocking does not meet these criteria. Thus, it is not classifiable as a Christmas ornament. See Headquarters Ruling Letters (HRL's) 088529 and 088164, issued April 22, 1991 and August 5, 1991, respectively, where Christmas stockings were classified as other than Christmas ornaments.

Subheading 9505.10.40 covers other Christmas articles of plastics, while 9505.10.50 covers other Christmas articles, other (than of plastics). As the Christmas stocking is not made of plastics, but of textile fabric, it is classifiable in 9505.10.50.

HOLDING:

The "Santa Christmas Stocking," is classifiable in subheading 9505.10.5000, HTSUSA, as "Festive, carnival or other entertainment articles,...Articles for Christmas festivities and parts and accessories thereof: Other: Other." The general column one rate of duty is 5.8 percent ad valorem. We note that the ruling being modified indicated a general column one rate of duty of 5 percent ad valorem which, under subheading 9902.95.05, was temporarily suspended until December 31, 1992.

This notice should be considered a modification of NYRL 834984 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 834984 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 834984 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, 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 you may 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
Commercial Rulings Division

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