HQ 954223: Classification of animated treetop angel; Heading 9505, HTSUSA, as festive, carnival or other entertainment articles.

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 954223
                                
                         August 20, 1993

CLA-2 CO:R:C:F 954223 LPF

CATEGORY: Classification

TARIFF NO.: 9505.10.2500

Ms. Maureen Shoule
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, NY 10038

RE: Classification of animated treetop angel; Heading 9505, HTSUSA,
    as festive, carnival or other entertainment articles.

Dear Ms. Shoule:

    This is in response to your letter dated May 5, 1993, submitted
on behalf of F.W. Woolworth Co., requesting the proper
classification of an animated treetop angel under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).  You
submitted a sample with your request for a binding ruling.

FACTS:

    The article, imported from Taiwan, is an animated treetop angel
12 inches in height and designed for placement atop a Christmas
tree.  The base and cone body of the angel are plastic and the
figure's outfit is textile.  Nine lights positioned inside of the
cone provide a soft glow.  The head and hands are porcelain and a
single light is attached to the right hand.  When the power cord
is plugged into an electrical socket and the power switched on, the
figure's electric motor is activated causing its lights and candles
to illuminate and its head, arms, and wings to move side to side.
A 4-1/2 inch tube fitted in the base permits placement of the
article on a tree.  Placing the top branches inside of the plastic
tube provides stability and enables the figure to stand atop a
Christmas tree.

ISSUE:

    Whether the treetop figure is classifiable in heading 9505 as
a festive, carnival or other entertainment article or elsewhere in
the HTSUSA.

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 

                               -2-

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.   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.

                               -3-
     
     First, the treetop figure is made of non-durable material. 
Customs will consider an article, such as the treetop figure, 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).  In addition, the article's primary
function is decorative, as opposed to, utilitarian.

     Finally, when examining the treetop figure, as a whole, it is
evident that the article is traditionally associated or used with
the particular festival of Christmas.  The EN's to 9505 indicate
that "decorative ...articles for Christmas trees," that is,
Christmas ornaments, are exemplars of traditional, festive
articles.  To qualify as a Christmas ornament, Customs looks to the
following three criteria:

          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 treetop figure meets these criteria.  Consequently, it is
classifiable as a Christmas ornament.

     The treetop figure is classifiable within subheading 9505.10
which provides for articles for Christmas festivities.  As for the
proper classification of the treetop figure 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. 
As the article is not composed of glass or wood, it is classified
pursuant to GRI 1 in subheading 9505.10.25.   

HOLDING:

     The treetop figure is classifiable in subheading 9505.10.2500,
HTSUSA, as "Festive, carnival or other entertainment articles,...:
Articles for Christmas festivities and parts and accessories
thereof: Christmas ornaments: Other: Other."  The applicable rate
of duty is 5 percent ad valorem.

                              
                                   Sincerely,


                                        
                                   John Durant, Director
                                   Commercial Rulings Division