HQ 951493: Modification of NYRL 840934; Artificial Christmas trees in 9505.10.40, HTSUSA; Festive articles for Christmas festivities, of plastics; EN's to 5404 and 5405, HTSUSA; HRL 089335

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 951493

                        January 27, 1993

CLA-2 CO:R:C:F 951493 LPF

CATEGORY: Classification

TARIFF NO.: 9505.10.40

Ms. Charlotte Chowning
Jasco Products Co., Inc.
Purchasing Dept.
P.O. Box 466
Oklahoma City, OK 73101

RE:  Modification of NYRL 840934; Artificial Christmas trees in
     9505.10.40, HTSUSA; Festive articles for Christmas
     festivities, of plastics; EN's to 5404 and 5405, HTSUSA; HRL
     089335

Dear Ms. Chowning:

     In New York Ruling Letter (NYRL) 840934, issued May 16,
1989, artificial Christmas trees, from Hong Kong, were 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 articles at issue are artificial Christmas trees,
measuring from three to nine feet.  They possess polyvinyl
chloride (PVC) pine needles affixed to a metal framework, all
inserted into a plastic stand.  The strip which is used to
construct the tree, and is twisted around a wire, is comb-shaped
and of extruded plastic, approximately 50 mm across.

ISSUE:

     Whether the artificial Christmas trees are classifiable in
subheading 9505.10.2500 as festive articles, articles for
Christmas festivities, Christmas ornaments, or in either
subheading 9505.10.4000 or 9505.10.5000 as festive articles,
articles for Christmas festivities, 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);

     2.   functions primarily as a decoration (e.g., its primary
          function is not utilitarian); and



                               -3-

     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 trees are made of non-durable material. 
Customs will consider articles, such as the Christmas trees, to
be made of non-durable material since they are not designed for
sustained wear and tear, nor are purchased because of their
extreme worth or value (as would be the case with a decorative,
yet costly, piece of art or crystal).

     Next, the articles' primary function is decorative, as
opposed to, utilitarian.  It is apparent, the Christmas trees
serve no useful function besides their role as decoration.

     Finally, when examining the Christmas trees, as a whole, it
is evident that they are traditionally associated or used with
the particular festival of Christmas.  Artificial Christmas trees
are 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
trees 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.   the item is advertised and sold
               as a Christmas tree ornament;

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

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

     The artificial Christmas trees do not meet these criteria. 
Thus, they are not classifiable as Christmas ornaments.



  

                               -4-

     Subheading 9505.10.40 covers other Christmas articles of
plastics, while 9505.10.50 covers other Christmas articles, other
(than of plastics).  In this regard, we note that the Christmas
trees contain plastic with a width of approximately 50 mm.  The
EN's to 5404 and 5405, HTSUSA, providing for, inter alia, strip
and the like of synthetic or artificial textile materials,
indicate that:

          [t]he strips of [these] heading[s] are flat, of a
          width not exceeding 5 mm, either produced as such by
          extrusion or cut from wider strips or from sheets.

As the Christmas trees are made of plastic strips that exceed
5mm, as opposed to textile strips, they are classifiable in
9505.10.40.  See Headquarters Ruling Letter 089335, issued June
24, 1991, where artificial Christmas trees were similarly
classified.  

HOLDING:

     The artificial Christmas trees are classifiable in
subheading 9505.10.4000, HTSUSA, as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other: Of Plastics."  The general
column one rate of duty is 8.4 percent ad valorem.  We note that
the ruling being modified indicated a general column one rate of
duty of 5 percent ad valorem.

     This notice should be considered a modification of NYRL
840934 pursuant to 19 CFR 177.9(d)(1).  It is not to be applied
retroactively to NYRL 840934 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling.  However, for the purposes of
future transactions in merchandise of this type, NYRL 840934 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, you may 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