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HQ 954223


August 20, 1993

CLA-2 CO:R:C:F 954223 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500

Ms. Maureen Shoule
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, NY 10038

RE: Classification of animated treetop angel; Heading 9505, HTSUSA, as festive, carnival or other entertainment articles.

Dear Ms. Shoule:

This is in response to your letter dated May 5, 1993, submitted on behalf of F.W. Woolworth Co., requesting the proper classification of an animated treetop angel under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted a sample with your request for a binding ruling.

FACTS:

The article, imported from Taiwan, is an animated treetop angel 12 inches in height and designed for placement atop a Christmas tree. The base and cone body of the angel are plastic and the figure's outfit is textile. Nine lights positioned inside of the cone provide a soft glow. The head and hands are porcelain and a single light is attached to the right hand. When the power cord is plugged into an electrical socket and the power switched on, the figure's electric motor is activated causing its lights and candles to illuminate and its head, arms, and wings to move side to side. A 4-1/2 inch tube fitted in the base permits placement of the article on a tree. Placing the top branches inside of the plastic tube provides stability and enables the figure to stand atop a Christmas tree.

ISSUE:

Whether the treetop figure is classifiable in heading 9505 as a festive, carnival or other entertainment article or elsewhere in the HTSUSA.

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 treetop figure is made of non-durable material. Customs will consider an article, such as the treetop figure, 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 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.

Finally, when examining the treetop figure, as a whole, it is evident that the article is traditionally associated or used with the particular festival of Christmas. The EN's to 9505 indicate that "decorative ...articles for Christmas trees," that is, Christmas ornaments, are exemplars of traditional, festive articles. To qualify as a Christmas ornament, Customs looks to 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.

The treetop figure meets these criteria. Consequently, it is classifiable as a Christmas ornament.

The treetop figure is classifiable within subheading 9505.10 which provides for articles for Christmas festivities. As for the proper classification of the treetop figure 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. As the article is not composed of glass or wood, it is classified pursuant to GRI 1 in subheading 9505.10.25.

HOLDING:

The treetop figure is classifiable in subheading 9505.10.2500, HTSUSA, as "Festive, carnival or other entertainment articles,...: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other." The applicable rate of duty is 5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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