CLA-2 CO:R:C:G: 085517 DPS
Ms. Debbie Zimmerman
Midwest Importers of Cannon Falls, Inc.
P.O. Box 20
Highway 52 South
Cannon Falls, MN 55009-0020
RE: Lighted Treetop Angel Figure, Hanging Santa Figure,
Pine Cone Cabin
Dear Ms. Zimmerman:
Your letter of July 26, 1989, to our New York office has
been referred to this office for reply concerning the tariff
classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of three items from your 1989
Christmas catalog, numbered 7751-2, 9288-3 and 1391-2. Samples
of the merchandise were submitted with your ruling request.
FACTS:
The articles requiring classification consist of the
following: (1) item no. 7751-2, at page 115, part 1 of the
inquirer's catalog, described as, "Lighted Praying Angel, Tree
Top;" (2) item no. 9288-3, at page 87, part 1 of the catalog,
described as "Antiqued Plastic Delivering Gifts Santa Ornament;"
and (3) item no. 1391-2, at page 18, part 1 of the catalog,
described as "Pine Cone Cabin."
The lighted treetop praying angel measures 10-1/2 inches in
height. Its head and hands are made of porcelain. The body of
the subject figure is made of a funnel shaped piece of plastic,
which is covered with a thin layer of soft foam. The clothing is
constructed of manmade textile material and thoroughly covers the
figure's body. A plastic ring, which holds several small
Christmas tree type lights, is attached to the open end at the
bottom of the figure's funnel shaped body. The lights are
equipped with a plug, which is designed to be plugged into the
lighting sets used on a Christmas tree. The country of origin
of this item is said to be Taiwan. The importer states that this
item's principal use is for decoration at the top of a Christmas
tree.
The plastic Santa ornament is 6-1/2 inches tall. It depicts
Santa in traditional red attire. A bag of toys is slung over the
figure's right shoulder and a lantern is being held in his left
hand. A gold loop is attached to the top of the toy bag on the
figure's right shoulder, enabling the figure to be hung from a
tree. This item is manufactured in China. The principal use of
this item in the United States is stated by the importer to be
for decoration on a Christmas tree.
The pine cone cabin is 5-1/2 inches tall, 4 inches wide, and
2-1/2 inches deep. It is constructed of pine cone material which
is glued on a styrofoam frame. The principal use of this item in
the United States is stated to be for decoration.
ISSUE:
Whether the subject articles are classifiable as Christmas
ornaments within subheading 9505.10, HTSUSA, and, if not, how
are they classified.
LAW & ANALYSIS:
The General Rules for the Interpretation of the Harmonized
System (GRI's) govern classification under the Harmonized Tariff
Schedule. According to GRI 1, the primary consideration in
determining whether merchandise should be classified in a heading
should be given to the language of the heading and any relevant
chapter or section notes, and, provided such headings or notes do
not otherwise require, according to the remaining GRI's, taken in
order. The subheadings at issue in this case are:
(a) 9505.10.2500, Festive, carnival or other
entertainment articles, including magic tricks and
practical joke articles; parts and accessories
thereof: Articles for Christmas festivities and
parts and accessories thereof: Christmas
ornaments: Other: Other;
(b) 9505.10.4000, Festive, carnival or other
entertainment articles, including magic tricks and
practical joke articles; parts and accessories
thereof: Articles for Christmas festivities and
parts and accessories thereof: Other: Of Plastics;
(c) 9505.10.5000, Festive, carnival or other
entertainment articles, including magic tricks and
practical joke articles; parts and accessories
thereof: Articles for Christmas festivities and
parts and accessories thereof: Other: Other; and
(d) 1404.90.0000, Vegetable products not
elsewhere specified or included: Other.
The Explanatory Notes to the HTSUSA, which constitute the
official interpretation of the tariff at the international level,
provide further guidance in determining the scope of each
provision. With regard to Heading 9505, HTSUSA, the provision
for festive articles, Explanatory Note 95.05, at p. 1590, states
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.
For the most part, the items described above which fall under
Heading 9505, HTSUSA, tend to have no function other than
decoration.
It is Customs' position that an article which, by its shape,
design and ornamentation is appropriately used in connection with
a recognized festive holiday, is an article that falls under
Heading 9505, HTSUSA. To qualify as a Christmas ornament,
Customs requires that the following three criteria be met:
(1) that the item is marketed and sold as a Christmas tree
ornament; (2) that there is some method, generally a loop
attached to the top, to secure or 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. Two of the submitted samples, the treetop
praying angel and the plastic Santa meet the above criteria.
They are designed, marketed, sold and used as tree ornaments.
Both the Santa and the angel depict characters that are
traditionally associated with Christmas and Christmas trees. Both
items clearly have a Christmas theme. They fall into a class of
merchandise which, for tariff purposes, is separate and distinct
from dolls. Therefore, pursuant to GRI 1, the subject treetop
angel and plastic Santa are classifiable under subheading
9505.10.2500, the provision for Christmas ornaments, made of
materials other than glass or wood.
The rustic pine cone cabin is a decorative item but has no
clear Christmas theme. Although it may be associated with the
Winter season, it is not an item that is traditionally associated
with Christmas. Therefore, it cannot be classified under the
Christmas article basket provision, subheading 9505.10.5000,
HTSUSA. Instead, it is classifiable under the provision which
most accurately describes it. Because no provision squarely
describes the pine cone cabin, reference to the subsequent GRI's
is necessary. GRI 2(b) requires that the classification of goods
made of more than one material shall be according to GRI 3.
Because the pine cone cabin is made of styrofoam and pine cone
components, GRI 3(a) requires that this composite article be
classified according to GRI 3(b). GRI 3(b) states that goods
which cannot be classified by reference to 3(a), shall be
classified as if they consisted of the material or component
which gives them their essential character.
Here, the essential character of the pine cone cabin is
imparted by the pine cone material which covers the entire outer
surface of the article. Accordingly, the pine cone cabin is
classifiable under the provision for vegetable products not
elsewhere specified or included, within subheading 1404.90.0000,
HTSUSA.
HOLDING:
In accordance with the rationale set forth above, the
treetop lighted praying angel figure and Santa ornament are
classifiable under subheading 9505.10.2500, HTSUSA, the provision
for Christmas ornaments of materials other than glass or wood.
Items classified under this subheading are subject to a duty rate
of 5 percent ad valorem.
The subject pine cone cabin is classifiable under subheading
1404.90.0000, HTSUSA, the provision for vegetable products not
elsewhere specified or included.
Sincerely,
John Durant, Director
Commercial Rulings Division