CLA-2 CO:R:C:F 951460 LPF
Mr. Ned Marshak
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, NY 10004
RE: Modification of NYRL 844796; Suncatcher Goose Plastic Window
Decoration; Heading 3926, HTSUSA; Other articles of
plastics; Not 9505 festive article.
Dear Mr. Marshak:
In New York Ruling Letter (NYRL) 844796, issued September
11, 1989, a suncatcher, window decoration, 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, style #325, a plastic suncatcher goose
window decoration, measures approximately 9.5 inches long. With
its stained-glass appearance, it depicts a goose wearing a
Christmas cap and wreath. This decorative article possesses a
metallic textile loop for hanging, in addition to a separate
suction cup. Although it mainly serves as a window decoration,
it may also adorn Christmas trees, mantles or doors.
ISSUE:
Whether the suncatcher goose window decoration is
classifiable in heading 9505 as a festive article, or in heading
3926 as an other article of plastic.
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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
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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.
Customs will consider the suncatcher to be made of non-
durable material since it is not designed for sustained wear and
tear, nor is purchased because of its extreme worth or value (as
would be the case with a decorative, yet costly, piece of art or
crystal). Also, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the suncatcher serves
no useful function besides its role as a decoration.
However, when examining the suncatcher, as a whole, it is
evident that the article is not traditionally associated or used
with the particular festival of Christmas. It is not ejusdem
generis with those articles cited in the EN's to 9505, as
exemplars of traditional, festive articles. The suncatcher's
Christmas motif will not transform it into a festive article.
The article must be classified elsewhere. See Headquarters
Ruling Letter 951909, issued September 29, 1992, where a plastic
suncatcher designed with a Christmas motif was classified as
other than a festive article.
Heading 3926 provides for other articles of plastics or
materials of headings 3901 to 3914. Since the plastic suncatcher
is ornamental, it is classifiable in subheading 3926.40.00.
HOLDING:
The suncatcher is classifiable in subheading 3926.40.00,
HTSUSA, as "Other articles of plastics and articles of other
materials of headings 3901 to 3914: Statuettes and other
ornamental articles." The general column one rate of duty is 5.3
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
844796 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 844796 (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
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844796 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