CLA-2 CO:R:C:F 951346 LPF
Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
1809 Baltimore Avenue
Kansas City, MO 64108
RE: Modification of NYRL 851214; Christmas tree skirt in
9505.10.5000, HTSUSA; Festive article, for Christmas
festivities, other than Christmas ornaments.
Dear Mr. O'Neill:
In New York Ruling Letter (NYRL) 851214, issued April 16,
1990, a Christmas tree skirt, imported 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 is a Christmas tree skirt of 100
percent cotton, white, woven fabric. It measures 41 inches in
diameter.
ISSUE:
Whether the Christmas tree skirt is classifiable in
subheading 9505.10.2500 as a festive article, for Christmas
festivities, Christmas ornaments, other, other, or is
classifiable in subheading 9505.10.5000 as a festive article, for
Christmas festivities, other (than Christmas ornaments), 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);
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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.
First, the article is made of non-durable material. Customs
will consider an article, such as the Christmas tree skirt, 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).
Next, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the Christmas tree
skirt serves no useful function besides its role as a decoration.
Finally, when examining the Christmas tree skirt, as a
whole, it is evident that the article is traditionally associated
or used with the particular festival of Christmas. The Christmas
tree skirt is akin to those articles 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 skirt 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. 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 Christmas tree skirt 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). As the Christmas tree skirt is not made of
plastics, but of textile fabric, it is classifiable in
9505.10.50.
HOLDING:
The Christmas tree skirt is classifiable in subheading
9505.10.5000, HTSUSA, as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other: Other." The general column
one rate of duty is 5.8 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
851214 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 851214 (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
851214 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