HQ 086302: Modification of New York Ruling 845357 classifying an artificial Christmas tree

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 086302

                        March 8, 1990

CLA-2  CO:R:C:G:  086302 DPS

CATEGORY:  Classification

TARIFF NO.:  9505.10.2500, 9505.10.4000


Mr. Michael O'Neill
O'Neill & Whitaker, Inc.
United States Customs Brokers
1809 Baltimore Avenue
Kansas City, MO  64108

RE:  Modification of New York Ruling 845357 classifying an
     artificial Christmas tree

Dear Mr. O'Neill:

     Upon review by our office of New York Ruling Letter
(NYRL) 845357, issued September 25, 1989, we have determined
that the subject artificial Christmas tree, made primarily of
plastic, was improperly classified under subheading
9505.10.2500 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).  This action is taken pursuant to
the Customs Regulations, 19 CFR Section 177.9(d).  This
office hereby modifies NYRL 845357, and issues this ruling
reclassifying the artificial Christmas tree, made primarily
of plastic, under subheading 9505.10.4000, HTSUSA, the
provision covering other Christmas articles, of plastic.

FACTS:

     The submitted sample, imported from Taiwan, is stated to
be a 7 foot tall artificial deluxe Scandinavian fir Christmas
tree (stock number 80701), which is composed primarily of
plastic.

LAW & ANALYSIS:

     NYRL 845357, dated September 25, 1989, classified the
subject artificial Christmas tree in the provision for other
Christmas ornaments, under subheading 9505.10.2500, HTSUSA.
Upon review of NYRL 845357 and the tariff nomenclature, it is
apparent that another HTSUSA provision more accurately
describes the subject merchandise.

     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.  GRI 6
requires application of the same GRI principles at the
subheading level.  The subheadings at issue here 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.



     The distinction between the two subheadings at issue
concerns the scope of the term "Christmas ornaments."
As expressed in several recent Customs Headquarters Rulings,
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.
Here, the artificial Christmas tree does not  meet the
criteria to be considered a Christmas ornament for tariff
classification purposes.  Although the subject tree is
considered to be an "article for Christmas festivities," it
cannot, for classification purposes, be considered a
"Christmas ornament."  Rather, it is properly classifiable as
an other article for Christmas festivities, made of plastic,
under subheading 9505.10.4000, HTSUSA.


HOLDING:

     Pursuant to Section 177.9(d) of the Customs Regulations
(19 CFR 177.9(d)), NYRL 845357, which classified the subject
artificial Christmas tree as a Christmas ornament
under subheading 9505.10.2500, HTSUSA, is hereby modified.
For the reasons set forth above, the subject artificial




Christmas tree is properly classifiable under subheading
9505.10.4000, HTSUSA, as an other article for Christmas
festivities, of plastic.  Items classified under this
subheading are subject to a duty rate of 8.4 percent ad
valorem.  NYRL 845357 is modified accordingly.

     This modification is effective immediately but will have
no retroactive effect.  A copy of this ruling letter is being
circulated to the ports concerned.  A copy of this ruling
letter should also be attached to the entry documents filed
at the time this type of merchandise is imported.


                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division