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HQ 951420


October 31, 1992

CLA-2 CO:R:C:F 951420 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.50, 3926.40.00

Ms. April Hartshorn
Import Manager
Seasonal Specialties
11455 Valley View Road
Eden Prairie, MN 55344

RE: Modification of NYRL 862016; Porcelain figurines; Sisal tree; Heading 9505, HTSUSA, Festive articles; Heading 3926, HTSUSA, Other articles of Plastics.

Dear Ms. Hartshorn:

In New York Ruling Letter (NYRL) 862016, issued May 1, 1991, porcelain figurines and a sisal tree, from the Philippines, were classified in subheading 9505.10.50, 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: Other [than Christmas ornaments]: Other." We have reviewed that ruling and have found it to be partially in error. The porcelain figurines were properly classified. The correct classification of the sisal tree is as follows.

FACTS:

The article at issue, known as a sisal tree (Item #13341), is composed of polyvinyl chloride (PVC) and stands on a porcelain base. It is approximately three inches in height and may be imported as part of various figurine assortments.

ISSUE:

Whether the sisal tree is classifiable in heading 9505 as a festive article or in heading 3926 as an other article of plastic.

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.

Customs will consider articles, such as the sisal tree, to be made of non-durable material since it is not designed for sustained wear and tear, nor is purchased because of its extreme worth or value (as would be the case with a decorative, yet costly, piece of art or crystal). In addition, the article's primary function is decorative, as opposed to, utilitarian.

However, when examining the sisal tree, as a whole, it is evident that the article is not traditionally associated or used with the particular festival of Christmas. The sisal tree, instead, may be used with various figurine assortments or sets. Customs does not consider the sisal tree to be a Christmas tree which would be classifiable in 9505, as a traditional, festive article.

Because the sisal tree is not classifiable in 9505 as a festive article, it must be classified elsewhere. Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. Since the article is primarily composed of plastic and is ornamental, it is classifiable in subheading 3926.40.00.

HOLDING:

The PVC sisal tree is classifiable in subheading 3926.40.00, HTSUSA, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The general column one rate of duty is 5.3 percent ad valorem.

Although the remainder of the merchandise in NYRL 862016 was properly classified, we clarify the following. The caroler figurines (Item #13207) and the couples figurines (Item #13213), are classifiable in subheading 9505.10.50, as festive articles, only when imported as part of an assortment wherein a Santa Claus figurine provides the assortment's essential character (pursuant to EN VII to GRI 3(b)). Accordingly, Item #13207, imported together, as an assortment, with a Santa Claus figurine, is classifiable in subheading 9505.10.50, while Item #13213, without a Santa Claus figurine, is classifiable in subheading 6913.10.50.

We note that articles classified in 3926.40.00, 6913.10.50 and 9505.10.50 are eligible for duty free treatment under the Generalized System of Preferences (GSP) provided they meet the requirements of General Note 3(c)(ii), HTSUSA.

NYRL 862016 is modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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