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HQ 952454


January 26, 1993

CLA-2 CO:R:C:F 952454 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500

Ms. Paige Carr
V. Alexander & Co., Inc.
15 Century Boulevard, Suite 400
Nashville, Tennessee 37214-3650

RE: Musical Porcelain Christmas Ornaments

Dear Ms. Carr:

This letter is in response to your inquiry of August 21, 1992, on behalf of your client, concerning the tariff classification of articles identified as musical porcelain Christmas ornaments, currently being imported from Taiwan by Heritage House, Inc. A sample was submitted with your inquiry.

FACTS:

The article at issue consists of bone porcelain figure of a colorfully decorated horse (although other animals may also be represented) suspended by a thin cord from a box decorated with a ribbon to resemble a present. On top of the box is a loop from which the box may be hung. The box contains a musical movement which plays a popular tune when activated by grasping the box and pulling the cord. Approximately 9-1/2 inches of cord may be withdrawn, which then slowly retracts pulling the horse toward the box. The horse measures approximately 4-1/2 inches by 3 inches by 1 inch, and the box measures approximately 2 inches by 1-1/2 inches by 1 inch. The article is marketed using a single page leaflet, is sold only by mail, and is identified by a label on the package as being part of the "Christmas Heirloom Collection."

ISSUE:

Under what provision of the HTSUSA are these items properly classified?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. 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, HTSUSA, provides for, among other items, festive, carnival, and other entertainment articles. The EN to 9505 indicates 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, soloured 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

First of all, the musical porcelain article is made of non- durable material. Customs will consider an article such as this, 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 a decorative, yet costly piece of art or crystal).

Secondly, the item's primary function is decorative, rather than utilitarian. The musical porcelain article serves no useful function other than to decorate.

Finally, upon examination of the article as a whole, it is apparent that it is associated or used with the particular festival of Christmas. Decorations for Christmas trees are cited in the EN to heading 9505 as examples of traditional festive articles.

Subheading 9505.10 includes articles for Christmas festivities. At the eight digit subheading level, subheading 9505.10.25 covers Christmas ornaments comprised of materials other than glass or wood. To be classified as a Christmas ornament, Customs requires that an article meet the following three criteria:

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.

It is our determination that the musical porcelain Christmas ornaments meet these criteria, and are classified in subheading 9505.10.2500, HTSUSA, the provision for Christmas ornaments of other than glass or wood.

HOLDING:

The musical porcelain Christmas ornaments are classified under subheading 9505.10.2500, HTSUSA, the provision for "[f]estive, carnival or other entertainment articles...: [a]rticles for Christmas festivities...: Christmas ornaments: Other: Other." The applicable duty rate for this subheading is 5 percent ad valorem.

Sincerely,

John Durant, Director

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