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HQ 955665


February 10, 1994

CLA-2 CO:R:C:T 955665 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.93.0000

Mr. Ken August
Easter Unlimited, Inc.
80 Voice Road
Carle Place, N.Y. 11514

RE: Menorah wall hanging is not a festive article, but a furnishing.

Dear Mr. August:

This is in reply to your letter of November 18, 1993, to our New York office. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a Menorah wall hanging, produced in China.

FACTS:

The merchandise at issue consists of a rectangle of nylon taffeta with a plastic rod slipped through the top hem. A cord attached to the ends of the rod creates a means to hang the item. A nearly three dimensional image of a Menorah is on the textile rectangle. There are two pockets, which hold fabric "lighted candles." Thus, instead of needing to light a real candle, children could place a textile "lighted candle" into the Menorah each day of the holiday.

ISSUE:

Whether the wall hanging is a festive article, a decorative article, or an other made up article under the HTSUSA?

LAW AND ANALYSIS:

Heading 9505, HTSUSA, provides for, inter alia, festive articles. In general, merchandise is classifiable in heading 9505 as a festive article when, as a whole, the item is of non- durable material (i.e., neither designed for sustained wear and tear nor purchased because of its extreme worth), functions primarily as a decoration (i.e., is not primarily utilitarian), and is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter). The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We find that the subject article is made of non-durable material, is primarily decorative despite having pockets and slots for storing and displaying colorful, textile "lighted candles," but is not traditionally associated with the particular festival of Chanukah. A traditional Menorah functions as an actual candle holder. While the article bears a festive motif (i.e., the image of a Menorah), the motif does not transform the item into a festive article. Accordingly, classification within heading 9505, HTSUSA, would be incorrect.

Heading 6304, HTSUSA, provides for furnishing articles. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. They represent the considered views of classification experts of the Harmonized System Committee. Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not treated as dispositive, the EN are to be given considerable weight in Customs' interpretation of the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading, at page 864, states:

This heading covers furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home, public buildings, theatres, churches, etc., and similar articles used in ships, railway carriages, aircraft, trailer caravans, motor cars, etc.

These articles include wall hangings and textile furnishings for ceremonies (e.g., weddings or funerals); mosquito nets; bedspreads (but not including bed coverings of heading 94.04); cushion covers; loose covers for furniture, antimacassars; table covers (other than those having the characteristics of floor coverings - see Note 1 to Chapter 57); mantlepiece runners; curtain loops; valances (other than those of heading 63.03).

It is a longstanding Customs position that if an article can be hung on a wall like a wall hanging and has a utilitarian function separate and distinct from its decorative value, the article cannot be classified under heading 6304, HTSUSA. See HRL 083203 of November 17, 1989 (cow message center components creating utilitarian function); HRL 086144 of February 15, 1990 (country granny paper towel holder); HRL 085014 of July 31, 1989 (gift wrap organizer). HRL 088553 of November 6, 1991, furthered this principle by holding that classes of articles ejusdem generis with the articles cited by the Explanatory Note above, although having utilitarian functions, are classified within heading 6304 (crib safety tent).

It has been suggested that the pockets may be considered functional because they hold the candles not in use. We disagree. The pockets merely provide a temporary holding place for the unused candles. The article as a whole is purely decorative in nature, although we recognize that even decorative articles will have components which may marginally be described as "utilitarian." See HRL 952321 of October 27, 1992 (device to hold and display barrettes); HRL 951967 of September 3, 1992 (greeting card holder). Accordingly, the article is appropriately classified within heading 6304, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6304.93.0000, HTSUSA, textile category 666, as other furnishing articles, not knitted or crocheted, of synthetic fibers. The applicable rate of duty is 10.6 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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