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HQ 957145




February 28, 1995

CLA-2 CO:R:C:F 957145 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.25

Ms. Madeleine Salgo
Kurt S. Adler, Inc.
1107 Broadway
New York, New York 10010-2872

RE: "Bradley - The Christmas Bubble Bear Ornament;" Christmas Ornament of Plastic

Dear Ms. Salgo:

This is in response to your inquiry of October 6, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an article identified as "Bradley - The Christmas Bubble Bear Ornament," imported from China. A sample and photographs were submitted with your request.

FACTS:

The article at issue, identified by item no. L-1, consists of a toy bear, wearing a red coat with white trim, and a red and white cap (all of which are composed of plastic). The article also contains electrical components which enable the bear to "blow bubbles." The item weighs approximately 16 ounces (with bubble solution), measures approximately 5-1/2 inches in height, is mounted on a platform (which may be rested on a tree branch), and has a hanger on top, allowing the item to be suspended for decoration. The description on the packaging indicates that the item is marketed and sold as a Christmas ornament.

ISSUE:

Whether the article is classified in heading 9505, HTSUS, as a Christmas ornament. -2-

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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.

In general, merchandise is classifiable in heading 9505, HTSUS, 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). -3-

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.

We consider the article to be made of non-durable material, since it is not purchased because of its extreme worth or value. The item is also primarily decorative in function, although its bubble-making feature also provides some degree of amusement. With respect to the third criterion, we do not find items such as toy bears, regardless of their attire, to be traditionally associated with Christmas. However, as noted above, decorative articles for Christmas trees (e.g., Christmas tree ornaments) are traditionally associated with Christmas. Therefore, if this item qualifies as a Christmas ornament, it is not necessary that it clearly demonstrate a traditional association with Christmas.

To be classified as a Christmas ornament, Customs requires that an article meet the following three criteria:

1. that the item be advertised and sold as a Christmas tree ornament;

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

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

We previously noted that the item is advertised and sold as a Christmas ornament, and that it has a hanger from which it may be suspended. We also find that the item is not too big or too heavy to be hung or attached to a tree. It is our determination that the article qualifies as a Christmas ornament and is classified in subheading 9505.10.25, HTSUS, the provision for Christmas ornaments of material other than glass or wood.

HOLDING:

"Bradley - The Christmas Bubble Bear Ornament," identified by item no. L-1, is classified in subheading 9505.10.25, HTSUS, the provision for "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Christmas ornaments: Other: Other." The applicable duty rate is free.

Sincerely,

John Durant, Director
Commercial Rulings Division

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