HQ 951343: Modification of NYRL 841059; Christmas tree skirt in 9505.10.5000, HTSUSA; Festive article, for Christmas festivities, other than Christmas ornaments.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951343

                         October 2, 1992

CLA-2 CO:R:C:F 951343 LPF

CATEGORY: Classification

TARIFF NO.: 9505.10.5000

Mr. Ruby L. Wood
Vice President
Evans and Wood & Co., Inc.
Customhouse Brokers
P.O. Box 610005
D/FW Airport, TX 75261

RE:  Modification of NYRL 841059; Christmas tree skirt in
     9505.10.5000, HTSUSA; Festive article, for Christmas
     festivities, other than Christmas ornaments.

Dear Mr. Wood:

     In New York Ruling Letter (NYRL) 841059, issued May 25,
1989, a Christmas tree skirt, imported from China, was classified
in subheading 9505.10.2500, 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: Christmas ornaments: Other:
Other."  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 is an off-white, circular-shaped
Christmas tree skirt of cotton and wool and measures
approximately 46.5 inches in diameter.  Its edging is finished
with a red textile trim, and a significant portion of its body is
embroidered with wool yarns which depict the following: holly
leaves and red berries; a decorated Christmas tree; and a bear
and horse standing within an open red and green toy box.  The
article is constructed with a full-radial section slit designed
for placement around the bottom of a Christmas tree.

ISSUE:

     Whether the Christmas tree skirt is classifiable in
subheading 9505.10.2500 as a festive article, for Christmas
festivities, Christmas ornaments, other, other, or is
classifiable in subheading 9505.10.5000 as a festive article, for
Christmas festivities, other (than Christmas ornaments), other.



                               -2-


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);





                               -3-

     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 Christmas tree skirt is made of non-durable
material.  Customs will consider an article, such as the
Christmas tree skirt, 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).

     Next, the article's primary function is decorative, as
opposed to, utilitarian.  It is apparent, the Christmas tree
skirt serves no useful function besides its role as a decoration.

     Finally, when examining the Christmas tree skirt, as a
whole, it is evident that the article is traditionally associated
or used with the particular festival of Christmas.  The Christmas
tree skirt is akin to those articles cited in the EN's to 9505,
as exemplars of traditional, festive articles.

     Subheading 9505.10 includes articles for Christmas
festivities.  As for the proper classification of the Christmas
tree skirt 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.  To qualify as a
Christmas ornament, Customs requires that the following three
criteria be met: 

          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 Christmas tree skirt does not meet these criteria. 
Thus, it is not classifiable as a Christmas ornament.
  

                               -4-

     Subheading 9505.10.40 covers other Christmas articles of
plastics, while 9505.10.50 covers other Christmas articles, other
(than of plastics).  As the Christmas tree skirt is not made of
plastics, but of textile fabric, it is classifiable in
9505.10.50.

HOLDING:

     The Christmas tree skirt is classifiable in subheading
9505.10.5000, HTSUSA, as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other: Other."  The general column
one rate of duty is 5.8 percent ad valorem.  We note that the
ruling being modified indicated a general column one rate of duty
of 5 percent ad valorem which, under subheading 9902.95.05, was
temporarily suspended, until December 31, 1992.

     This notice should be considered a modification of NYRL
841059 pursuant to 19 CFR 177.9(d)(1).  It is not to be applied
retroactively to NYRL 841059 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling.  However, for the
purposes of future transactions in merchandise of this type, NYRL
841059 will not be valid precedent.  We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it. 
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.

                                   Sincerely,

                    
                                   
                                   John Durant, Director
                                   Commercial Rulings Division