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HQ 957450




November 2, 1995

CLA-2 RR:TC:FC 957450 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

Port Director of Customs
U.S. Customs Service
200 St. Paul Place, 28th Floor
Baltimore, MD 21202

RE: Application for Further Review of Protest 1303-94-100140, May 17, 1994, Regarding the Classification of Certain Polyresin Figurines

Dear Ms. Graves:

This ruling is on a protest that was filed against your decision of February 18, 1994, regarding an entry for festive polyresin figurines.

FACTS:

The articles under consideration are polyresin figurines including a Santa sled stocking holding, a Santa train stocking holder, and a nutcracker tree stocking holding. Both Customs at the port of entry and the importer agree that these articles are festive articles. The articles are stated to be made of polyresin which the importer states in not plastic and should be classified under the provision for festive articles other than plastic.

ISSUE:

Are the articles classifiable as festive articles of plastic?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative - 2 -
section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We do not have any samples or details of the composition of the articles but note that Customs at the port of entry and the importer agree that they are festive articles for Christmas. They only disagree as to whether the articles are classifiable as articles of plastic or other than plastic. The importer stated that "Customs will soon reevaluate their position of agglomerated poly resin and allow them to be considered other than a plastic. The importer has not submitted any documentation or samples in support of its statement. Samples are apparently no longer available since the merchandise was seasonal in nature and has been sold or otherwise disposed of.

In considering this matter we noted that the term "polyresin" is sometimes used to refer to stone blended with plastics material (i.e., agglomerated stone). This word, however, is also used to refer to pure plastics or plastics blended with material other than stone. In order to determine whether the polyresin product at issue consists of artificial stone, we would have to determine the precise composition of the item and the derivation of the non-plastics material within the item. We would have to know the precise geological or chemical name of the non-plastics material within the product and whether the material is derived from crushed or ground stone or a synthetic chemical.

In the absence of any information to the contrary we must conclude that nothing is blended with the plastics material or that it is blended with a material which does not meet the requirements for classification as artificial stone. Accordingly, we must conclude that the instant products are partially or totally composed of plastics and are classifiable under the provision for articles for Christmas festivities, of plastics.

HOLDING:

Festive articles for Christmas of polyresin, absent a showing that they are not composed, in whole or in part, of plastics, are classifiable in subheading 9505.10.4000, HTSUSA. Such merchandise was, at the time of entry, dutiable at a general rate of duty of 8.4 percent ad valorem. It is currently subject to a free general rate of duty.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action of the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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