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HQ 951419


February 1, 1993

CLA-2 CO:R:C:F 951419 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

Mr. Charles Laber
Assistant Manager, Import
Silvestri Corporation
2720 North Paulina Street
Chicago, IL 60614

RE: Modification of NYRL 847907; Decorative nylon windsock with Christmas motif; Heading 6307, HTSUSA; Other made up (textile) article; Not 9505 festive article.

Dear Mr. Laber:

In New York Ruling Letter (NYRL) 847907, issued December 13, 1989, a decorative windsock, 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 article at issue is a windsock made of 100 percent nylon. A Santa face is applied to the top by a silk screening process. A string is attached for hanging the decoration inside or outside the home.

ISSUE:

Whether the windsock is classifiable in heading 9505 as a festive article, or is classifiable in heading 6307 as an other made up textile article.

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

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.

Customs will consider an article, such as the windsock, 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). In addition, the article's primary function is decorative, as opposed to, utilitarian. It is apparent the windsock serves no useful function besides its role as a decoration.

However, when examining the windsock, as a whole, it is evident that the article is not traditionally associated or used with a particular festival. The windsock is not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. The article must be classified elsewhere. See NYRL 842998, issued July 18, 1989, where a nylon windsock with a Halloween motif was classified as other than a festive article.

Heading 6307 provides for other made up textile articles. The EN's to 6307 indicate that the heading includes, "...made up articles of any textile material which are not included more specifically...elsewhere in the Nomenclature." Because this article is not included elsewhere in the HTSUSA, it is classifiable in heading 6307. The applicable subheading is 6307.90.99.

HOLDING:

The nylon windsock decoration is classifiable in subheading 6307.90.9986, HTSUSA, as "Other made up [textile] articles, including dress patterns: Other: Other: Other, Other: Other." The general column one rate of duty is 7 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 847907 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 847907 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 847907 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, you may 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

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