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HQ 956295


June 24, 1994

CLA-2 CO:R:C:F 956295 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.00

Mr. Peter J. Morton
Lillian Vernon Corporation
543 Main Street
New Rochelle, New York 10801

RE: "Happy Halloween Banner;" Not Festive Article

Dear Mr. Morton:

This letter is in response to your inquiry of March 21, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an article identified as a "Happy Halloween Banner," to be imported from China. A sample was submitted with your inquiry.

FACTS:

The "Happy Halloween Banner" measures approximately 52 inches in length and consists of two jack-o'-lanterns and black and orange letters forming the words "HAPPY HALLOWEEN." The article is comprised of an outer fabric of cotton, into which is inserted polyfill material and cardboard. The letters measure approximately 3-1/4 inches high and the jack-o'-lanterns (one at each end) measure approximately 5 inches in height. There are two loops from which the item may be suspended.

ISSUE:

Whether the article is classified in heading 9505, HTSUS, as a festive article, or in heading 6304, HTSUS, as an other furnishing article.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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.

In general, merchandise is classifiable in heading 9505, HTSUS, 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the subject article 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). The item is also primarily decorative in function.

Upon examination of the third criterion, however, we find that banners are not traditionally associated or used with a particular festival. They are not the same types of articles cited in the ENs to 9505, as examples of traditional, festive articles. Although this banner's jack-o'-lanterns, colors, and message strongly suggest a Halloween theme, an item's motif - as noted above - does not transform an article not traditionally associated with Halloween into a festive article. In classifying traditional festive articles for Halloween, it is Customs position that only jack-o'-lanterns which: a) are of a pumpkin shape or form, and b) are capable of illumination, qualify as festive articles. See Headquarters Ruling Letter 951897, issued August 26, 1992. Thus, the "Happy Halloween Banner" is not classified as a festive article under heading 9505, HTSUS, and must be classified elsewhere.

Heading 6304, HTSUS, provides, in part, for "Other furnishing articles...." The EN to heading 6304 indicates that the heading covers articles of textile materials for use in the home, public buildings, theatres, and churches, including wall hangings and textile furnishings for ceremonies. It is our determination that heading 6304 most accurately provides for the hanging, decorative nature of the banner, and that the article is classified in subheading 6304.92.00, HTSUS, the provision for other furnishing articles, not knitted or crocheted, of cotton.

HOLDING:

The "Happy Halloween Banner" is classified in subheading 6304.92.00, HTSUS, textile category 369, the provision for "Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton." The applicable duty rate is 7.2 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 renegotiations 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 internal issuance of the U.S. Customs Service, which is available for inspection 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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