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HQ 951491


January 27, 1993

CLA-2 CO:R:C:F 951491 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.40

Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
United States Customs Brokers
1809 Baltimore Avenue
Kansas City, MO 64108

RE: Modification of NYRL 845357; Artificial Christmas tree in 9505.10.40, HTSUSA; Festive article for Christmas festivities, of plastics; EN's to 5404 and 5405, HTSUSA; HRL 089335

Dear Mr. O'Neill:

In New York Ruling Letter (NYRL) 845357, issued September 29, 1989, an artificial Christmas tree, from Taiwan, 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 merchandise at issue is a seven foot artificial Scandinavian fir Christmas tree, stock number 80701. It is essentially composed of polyvinyl chloride (PVC). The strip which is used to construct the tree, and is twisted around a wire, is comb-shaped and of extruded plastic, approximately 5 cm in width.

ISSUE:

Whether the Christmas tree is classifiable in subheading 9505.10.2500 as festive articles, articles for Christmas festivities, Christmas ornaments, or in either subheading 9505.10.4000 or 9505.10.5000 as festive articles, articles for Christmas festivities, 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 tree is made of non-durable material. Customs will consider an article, such as the Christmas 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).

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

Finally, when examining the Christmas tree, as a whole, it is evident that it is traditionally associated or used with the particular festival of Christmas. Artificial Christmas trees 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 tree 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. the item is advertised and sold as a Christmas tree ornament;

2. there is some method, generally a loop attached to the top, to hang the item on a tree; and

3. the item is not too big or too heavy to be hung or attached to a tree.

The artificial Christmas tree does not meet these criteria. Thus, it is not classifiable as a Christmas ornament.

Subheading 9505.10.40 covers other Christmas articles of plastics, while 9505.10.50 covers other Christmas articles, other (than of plastics). In this regard, we note that the Christmas tree contains plastic with a width of approximately 5 cm. The EN's to 5404 and 5405, HTSUSA, providing for, inter alia, strip and the like of synthetic or artificial textile materials, indicate that:

[t]he strips of [these] heading[s] are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips or from sheets.

As the Christmas tree is made of plastic strips that exceed 5mm, as opposed to textile strips, it is classifiable in 9505.10.40. See Headquarters Ruling Letter 089335, issued June 24, 1991, where artificial Christmas trees were similarly classified.

HOLDING:

The artificial Christmas tree is classifiable in subheading 9505.10.4000, HTSUSA, as "Festive, carnival or other entertainment articles,...Articles for Christmas festivities and parts and accessories thereof: Other: Of Plastics." The general column one rate of duty is 8.4 percent ad valorem. We note that the ruling being modified indicated a general column one rate of duty of 5 percent ad valorem.

This notice should be considered a modification of NYRL 845357 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 845357 (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 845357 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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