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HQ 952085




December 22, 1992

CLA-2 CO:R:C:T 952085 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.50

District Director
U.S. Customs Service
P.O. Box 2450
San Francisco, CA 94111

RE: Request for Further Review of Protest No. 2809-92-100659, Dated April 8, 1992, Concerning the Classification of a Santa Door Hanger; Heading 6307; a festive article, classifiable in Heading 9505; HRL 088584; HRL 952520

Dear Sir:

This ruling is in response to the protest that was filed on behalf of Mervyn's Import Department on April 8, 1992, against your decision concerning the classification of a Santa Door Hanger. A sample was submitted for examination.

FACTS:

The merchandise in question is a representation of a traditional Santa Claus approximately 15 inches high. It is constructed of a cardboard backing covered with textile material and contains a ribbon hanger. The front of the article is lightly stuffed with foam. This internal stuffing gives the article depth. The protestant states that the article in question is intended for hanging on a door as a Christmas decoration.

This protest concerns entries of the article in question entered under subheading 9505.10.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and liquidated under subheading 6307.90.9490. The protestant asserts that the article is properly classifiable under Heading 9505 as it is more specific than Heading 6307 which is the residual heading for made-up textile articles not elsewhere provided for in the tariff.

ISSUE:

Whether the article at issue is classifiable in Heading 9505 as a festive article, or in Heading 6307 as an other made up article?

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the HTSUSA. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's taken in order.

The article in question is potentially classifiable in two headings. One such heading is Heading 6307 which provides for other made up articles, not included more specifically elsewhere in the Nomenclature. The other possible heading is Heading 9505, which provides for festive, carnival or other entertainment articles. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding, are the official interpretation of the tariff at the international level. The EN to Heading 9505 state in pertinent part:

(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.

Generally, merchandise is classifiable in Heading 9505, as a festive article when the article, in its totality:

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.

In this instance, the Santa door hanger is made of a woven cotton textile fabric. This fabric construction enhances the article's durability. The cardboard backing, however, detracts from the article's repeated use. Also, the merchandise in question is not purchased because of its extreme worth, or intrinsic value.

Next, the article's principal function is as an item to adorn the home during the Christmas season. The Santa door hanger serves no useful function except as a decoration.

Finally, when examining the Santa door hanger in its totality, it is apparent that the article is traditionally associated or used during the Christmas holiday season. When classifying merchandise as a festive article under Heading 9505, the entire item must be traditionally associated with a particular holiday or festival and analogous to those articles cited in the EN to Heading 9505.

In this instance, the submitted sample is a unique three- dimensional form of Santa Claus. It is important to note that Santa Claus is a distinctive form that has been customarily and exclusively linked with Christmas. Since the motif of an article is not dispositive of its classification only three dimensional forms of Santa Claus, identifiable as such upon importation, are classifiable within Heading 9505, as festive articles. See HRL 088584, dated September 15, 1992, where decorative plates with flat renditions of a nativity scene and a holiday motif were classified as other than festive articles. See also, HRL 952520, where a three dimensional Santa Claus figurine was classified as a festive article under Heading 9505.

The article in question is instantly recognizable, upon importation, as a representation of Santa Claus, which in its entirety, is traditionally associated with Christmas. There is a question, as to whether the Santa door hanger is three dimensional in form, since the article contains a flat cardboard backing. The flat backing, however, does not negate a festive article classification, as the front of the article is stuffed with foam. The Santa door hanger is not a flat rendition of Santa Claus. Instead, it is a three dimensional form that has depth and is customarily identified with Christmas. Consequently, the Santa door hanger is classifiable in Heading 9505 as a festive article.

HOLDING:

Based on the foregoing, the article in question is properly classified under subheading 9505.10.5000, HTSUSA, as festive, carnival, or other entertainment articles. The applicable rate of duty is 5.8 percent ad valorem.

The protest should be allowed in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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