HQ 952454: Musical Porcelain 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 952454

                        January 26, 1993


CLA-2  CO:R:C:F  952454  GGD

CATEGORY:  Classification

TARIFF NO.:  9505.10.2500

Ms. Paige Carr
V. Alexander & Co., Inc.
15 Century Boulevard, Suite 400
Nashville, Tennessee 37214-3650

RE:  Musical Porcelain Christmas Ornaments 

Dear Ms. Carr:

     This letter is in response to your inquiry of August 21,
1992, on behalf of your client, concerning the tariff
classification of articles identified as musical porcelain
Christmas ornaments, currently being imported from Taiwan by
Heritage House, Inc.  A sample was submitted with your inquiry.  

FACTS:

     The article at issue consists of bone porcelain figure of a
colorfully decorated horse (although other animals may also be
represented) suspended by a thin cord from a box decorated with a
ribbon to resemble a present.  On top of the box is a loop from
which the box may be hung.  The box contains a musical movement
which plays a popular tune when activated by grasping the box and
pulling the cord.  Approximately 9-1/2 inches of cord may be
withdrawn, which then slowly retracts pulling the horse toward
the box.  The horse measures approximately 4-1/2 inches by 3
inches by 1 inch, and the box measures approximately 2 inches by
1-1/2 inches by 1 inch.  The article is marketed using a single
page leaflet, is sold only by mail, and is identified by a label
on the package as being part of the "Christmas Heirloom
Collection."  
                               -2-  
     
ISSUE:

     Under what provision of the HTSUSA are these items properly
classified?
                         
LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's).  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 GRI's may
then be applied.  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, HTSUSA, provides for, among other items,
festive, carnival, and other entertainment articles.  The EN to
9505 indicates 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, soloured 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....

                             *  *  * 
                               -3-

     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 item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.

     First of all, the musical porcelain article is made of non-
durable material.  Customs will consider an article such as this,
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 a decorative, yet costly
piece of art or crystal).

     Secondly, the item's primary function is decorative, rather
than utilitarian.  The musical porcelain article serves no useful
function other than to decorate.  

     Finally, upon examination of the article as a whole, it is
apparent that it is associated or used with the particular
festival of Christmas.  Decorations for Christmas trees are cited
in the EN to heading 9505 as examples of traditional festive
articles.

     Subheading 9505.10 includes articles for Christmas
festivities.  At the eight digit subheading level, subheading
9505.10.25 covers Christmas ornaments comprised of materials
other than glass or wood.  To be classified as a Christmas
ornament, Customs requires that an article meet the following
three criteria: 
                               -4-

     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.

     It is our determination that the musical porcelain Christmas
ornaments meet these criteria, and are classified in subheading
9505.10.2500, HTSUSA, the provision for Christmas ornaments of
other than glass or wood.

HOLDING:

     The musical porcelain Christmas ornaments are classified
under subheading 9505.10.2500, HTSUSA, the provision for
"[f]estive, carnival or other entertainment articles...:
[a]rticles for Christmas festivities...: Christmas ornaments:
Other: Other."  The applicable duty rate for this subheading is 5
percent ad valorem.


                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division