HQ 956584: Decision on Application for Further Review of Protest No. 1703-94-100048, filed April 26, 1994, concerning the classification of plastic Christmas decorations.

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 956584

                        December 12, 1994


CLA-2  CO:R:C:F  956584  GGD

CATEGORY:  Classification

TARIFF NO.:  9505.10.25

District Director of Customs
1 East Bay Street
Savannah, Georgia 31401

RE:  Decision on Application for Further Review of Protest No.
     1703-94-100048, filed April 26, 1994, concerning the
     classification of plastic Christmas decorations.

Dear Sir:

     This is a decision on a protest filed April 26, 1994,
against your decision in the classification and liquidation of
Christmas decorations that were entered in September 1993.

FACTS:

     You classified the items under subheading 9505.10.40,
Harmonized Tariff Schedule of the United States (HTSUS), the
provision for "Festive, carnival or other entertainment
articles...: Articles for Christmas festivities...: Other: Of
plastics," with an applicable duty rate of 8.4 percent ad
valorem.

     Protestant claims that the goods should be classified under
subheading 9505.10.25, HTSUS, the provision for "Festive,
carnival or other entertainment articles...: Articles for
Christmas festivities...: Christmas ornaments: Other: Other,"
with an applicable duty rate of 5 percent ad valorem.

     The samples, identified by item nos. 2251225, 2251227,
2251229, 2251894, and 2251956, are plastic items in the shapes of
reindeer, snowflakes, angels, doves, candy canes, each with a
hanger allowing the article to be suspended.  The items are
packaged in header cards that are either red and green, or red
and gold in color, and are advertised and sold as Christmas
ornaments.                                 -2-

ISSUE:

     Whether the articles are classified in subheading
9505.10.40, HTSUS, as Christmas articles other than ornaments, or
in subheading 9505.10.25, HTSUS, as Christmas ornaments.

LAW AND ANALYSIS:

     Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs).  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 GRIs may then
be applied.  The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.

     Heading 9505, HTSUS, provides for, among other items,
festive, carnival or other entertainment articles.  The EN to
heading 9505 states, in part, 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.

     In general, merchandise is classifiable in heading 9505,
HTSUS, 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 item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.

     We consider the figures to be made of non-durable material
(since they are not designed for sustained wear and tear, nor are
they purchased because of their extreme worth or value).  The
items are also primarily decorative in function.

     With respect to the third criterion, we do not find items
such as snowflakes, doves, candy canes, etc., to be traditionally
associated with Christmas.  However, as noted above, decorative
articles for Christmas trees (e.g., Christmas tree ornaments) are
traditionally associated with Christmas.  Therefore, if these
items qualify as Christmas tree ornaments, it is not necessary
that they clearly demonstrate a Christmas motif.

     To be classified as a Christmas ornament, Customs requires
that an article meet the following three criteria:

     1.   that the item be advertised and sold as a Christmas
          tree ornament;

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

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

     We previously noted that the items are advertised and sold
as Christmas tree ornaments, and that each one has a hanger from
which it may be suspended.  We also find that the items are not
too big or too heavy to be hung or attached to a tree.  It is our
determination that the goods qualify as Christmas ornaments and
are classified in subheading 9505.10.25, HTSUS, the provision for
Christmas ornaments of material other than glass or wood.

HOLDING:

     The Christmas ornaments identified by item nos 2251225,
2251227, 2251229, 2251894, and 2251956 are classified in
subheading 9505.10.25, HTSUS, the provision for "Festive,                               -4-

carnival or other entertainment articles...: Articles for
Christmas festivities...: Christmas ornaments: Other: Other." 
The applicable duty rate is 5 percent ad valorem.

     Since reclassification of the merchandise as indicated above
will result in a rate of duty lower than the liquidated rate, you
are instructed to allow the protest in full.  A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.

     In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject:  Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to 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 to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.


                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division