CLA-2 CO:R:C:F 951491 LPF
Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
United States Customs Brokers
1809 Baltimore Avenue
Kansas City, MO 64108
RE: Modification of NYRL 845357; Artificial Christmas tree in
9505.10.40, HTSUSA; Festive article for Christmas
festivities, of plastics; EN's to 5404 and 5405, HTSUSA; HRL
089335
Dear Mr. O'Neill:
In New York Ruling Letter (NYRL) 845357, issued September
29, 1989, an artificial Christmas tree, from Taiwan, 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 merchandise at issue is a seven foot artificial
Scandinavian fir Christmas tree, stock number 80701. It is
essentially composed of polyvinyl chloride (PVC). The strip
which is used to construct the tree, and is twisted around a
wire, is comb-shaped and of extruded plastic, approximately 5 cm
in width.
ISSUE:
Whether the Christmas tree is 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.
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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.
First, the Christmas tree is made of non-durable material.
Customs will consider an article, such as the Christmas tree, 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).
Next, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the Christmas tree
serves no useful function besides its role as a decoration.
Finally, when examining the Christmas tree, as a whole, it
is evident that it is 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
tree 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 tree does not meet these criteria.
Thus, it is not classifiable as a Christmas ornament.
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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
tree contains plastic with a width of approximately 5 cm. 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 tree is made of plastic strips that exceed 5mm,
as opposed to textile strips, it is 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 tree is 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
845357 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 845357 (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
845357 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