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HQ 951909


September 29, 1992

CLA-2 CO:R:C:F 951909 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Ms. Lori Aldinger
Import Coordinator
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE: Modification of DD 872697; Plastic suncatcher in heading 3926 HTSUSA; Other articles of plastics; Not 9505 festive article.

Dear Ms. Aldinger:

In Miami District Ruling (DD) 872697, issued April 7, 1992, a plastic suncatcher was classified in subheading 9505.10.4000, 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: Other." Pursuant to your request, 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, item #91301, is a nine inch plastic suncatcher imported from China. It is designed with a Christmas motif.

ISSUE:

Whether the suncatcher is classifiable in subheading 9505.10.40 as festive articles, articles for Christmas festivities, other, or in subheading 3926.40.00 as articles of plastics, statuettes and other ornamental articles.

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 akin to 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.

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 8.4 percent ad valorem.

DD 872697 is modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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