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HQ 951460


January 11, 1993

CLA-2 CO:R:C:F 951460 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Mr. Ned Marshak
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-seven Broad Street
New York, NY 10004

RE: Modification of NYRL 844796; Suncatcher Goose Plastic Window Decoration; Heading 3926, HTSUSA; Other articles of plastics; Not 9505 festive article.

Dear Mr. Marshak:

In New York Ruling Letter (NYRL) 844796, issued September 11, 1989, a suncatcher, window decoration, 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, style #325, a plastic suncatcher goose window decoration, measures approximately 9.5 inches long. With its stained-glass appearance, it depicts a goose wearing a Christmas cap and wreath. This decorative article possesses a metallic textile loop for hanging, in addition to a separate suction cup. Although it mainly serves as a window decoration, it may also adorn Christmas trees, mantles or doors.

ISSUE:

Whether the suncatcher goose window decoration 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 the suncatcher 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). Also, the article's primary function is decorative, as opposed to, utilitarian. It is apparent, the suncatcher serves no useful function besides its role as a decoration.

However, when examining the suncatcher, as a whole, it is evident that the article is not traditionally associated or used with the particular festival of Christmas. It is not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. The suncatcher's Christmas motif will not transform it into a festive article. The article must be classified elsewhere. See Headquarters Ruling Letter 951909, issued September 29, 1992, where a plastic suncatcher designed with a Christmas motif was classified as other than a festive article.

Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. Since the plastic suncatcher is ornamental, it is classifiable in subheading 3926.40.00.

HOLDING:

The suncatcher 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. 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 844796 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 844796 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL

844796 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, your client 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
Commercial Rulings Division

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