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HQ 089894

January 6, 1991

CLA-2 CO:R:C:T 089894 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.0000

Beth Brotman
Louis S. Shoichet
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, NY 10036

RE: Reconsideration HQ 089084; wreath-shaped decorative Christmas articles; classifiable heading 6304, HTSUSA, other furnishing articles.

Dear Ms. Brotman and Mr. Shoichet:

In a letter dated October 7, 1991, pursuant to our request, you submitted detailed arguments regarding Customs precedent on festive articles as relevant to the reconsideration of HQ 089084 (issued June 13, 1991). The following is our decision on the request for reconsideration.

FACTS:

You assert that the articles at issue, hanging decorative items having wreath-like appearances, are properly classifiable in heading 9505, HTSUSA, as articles for Christmas activities. Specifically, the various arguments in support of this classification are the following:

1) Heading 9505 is a "use" provision and has been so recognized by Customs (e.g., rulings 083330, dated April 10, 1990, 083032, dated July 13, 1990, 085888, dated August 23, 1990, and 088067, dated February 11, 1991); therefore, the articles at issue are of the class or kind to which goods of heading 9505 belong, and the controlling use (decorative) is the principal use.

2) An article by its shape, design, ornamentation and appropriate use in connection with a recognized festive holiday is an article classifiable in heading 9505, and

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the present merchandise are such articles (see 085539, dated November 17, 1989, 083180, dated February 28, 1990, and 084080, dated July 3, 1989).

3) Customs has improperly limited the scope of articles to be considered "traditionally associated" with Christmas on the basis of non-binding Explanatory Notes, and, moreover, has stated that strict adherence to the concept of traditional use is improper (HQ 084719 dated June 14, 1989)

4) Customs has been more liberal in the application of heading 9505 with respect to festive articles of other holidays (see, HQ 085320, dated June 10, 1990 and HQ 085512 December 28, 1989)

ISSUE:

Whether the classification of the subject goods under HQ 089084 is found to be erroneous upon reconsideration.

LAW AND ANALYSIS:

We affirm the principle that heading 9505 is a "use" provision and that classification of goods thereunder must indicate a use which is dedicated to a specific holiday, in accordance with all the relevant terms of the HTSUSA. However, the decorative wreath-like wall hangings at issue do not qualify as such due to EN 95.05 which specifically delineates the types of articles which are considered "traditionally associated" with the Christmas holiday. The simple application of a Christmas motif or colors to a seasonal item whose principal use is to decorate the walls of a home does not make an item classifiable as a festive article of heading 9505, HTSUSA.

The cases cited in support of this principal are in keeping with our position: HQ 088067 classified water globes with Santa Claus and Christmas-tree-bearing figurines in a flurry of snow, under heading 7013 as glassware for indoor decoration. Like the articles at issue, the water globes are not of a class or kind of merchandise that is specifically holiday related; they may be sold year round in a variety of motifs. Likewise, Customs denied 9505 classification to a bottle cover in HQ 083032 which was decorated with a Christmas motif. Porcelain figurines with loops attached to their heads (to facilitate hanging on a Christmas tree) fell squarely within the "traditional" test, as did the animated doll-like Christmas figures of HQ 083032.

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We no longer apply the standard that an article "by its shape, design, ornamentation and appropriate use in connection with a recognized festive holiday is an article classifiable in heading 9505."

The Explanatory Notes to heading 9505, while not legally binding, represent the considered views of classification experts of the Harmonized System Committee. In the absence of clear and unambiguous statutory language to the contrary, it has been Customs practice to follow such terms when interpreting the HTSUSA. The present notes provide a clear indication of the type of articles contemplated for inclusion under heading 9505, and we abide by those references. The articles enumerated, although not an exhaustive list, are specifically associated with the Christmas holiday in a traditional manner. HQ 084719 properly classified a green and red knit stocking under heading 9505, as Christmas stockings are specifically enumerated in the above notes. The other stocking classified under that heading failed the traditional test. Our statement regarding strict adherence to the concept of traditional use related to the application of such an interpretation to the style of the item in question; the article itself is still subject to a traditional test, and must be of the class or kind that is associated with the Christmas holiday.

Finally, you assert that Customs has taken a more liberal approach to the classification of festive articles associated with other holidays. We note, however, that our approach has been consistent with the Explanatory Notes which have not singled out other holidays for a specific listing of examples in the way that has been done with Christmas. Therefore, the merchandise which was the subject of the two Headquarters rulings you cited were appropriately classified as festive articles for Valentine's Day and Halloween.

HOLDING:

We affirm HQ 089084, which concluded classification of the merchandise at issue under subheading 6304.92.0000, HTSUSA, was appropriate.

Sincerely,

John Durant, Director

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