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HQ 957232




January 20, 1995

CLA-2 CO:R:C:T 957232 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.4040

Tracy Ann Ehme
The A.W. Fenton Company Inc.
1157 Rarig Avenue
Columbus, Ohio 43219

RE: Classification of vinyl decorative lawn signs; not festive articles; printed matter; Legal Note 2, Section VII, HTSUSA

Dear Ms. Ehme:

This responds to your letter of September 7, 1994, wherein you requested a binding classification ruling on vinyl outdoor Christmas signs. We have reviewed the matter and our decision follows.

FACTS:

The merchandise at issue, item #6452, are flat signs made of tough, weatherproof vinyl film covering cardboard frames. You submitted three samples, each printed with a different multi- colored caricature: the "Little Drummer Boy," "Santa Clause," and a reindeer ("Rudolph"). A slot is located on the back of the signs into which a plastic stake fits. By driving the stake into the ground or snow, the signs can be displayed as a decoration. The signs measure about one foot wide by one and one half feet high. Their shape conforms roughly to the contour of the character printed on the sign.

ISSUE:

What is the proper classification for the plastic signs at issue?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined in accordance with the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining rules will be applied in sequential order. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System (cited as HCDCS) assist us in the classification of merchandise. The EN's constitute the official interpretation of the nomenclature at the international level. While not legally binding, they represent the considered views of classification experts of the Harmonized System Committee. It has been the practice of the Customs Service to follow, whenever possible, the terms of the EN's when interpreting the HTSUS. (See Treasury Decision (T.D.) 89-80, 23 Cust. Bull. 379 (1989), 54 Fed. Reg. 35,127 (August 23, 1989).)

Three tariff provisions are suggested for classification of the instant merchandise: heading 9505, HTSUSA, pertaining to festive articles; heading 3926, HTSUSA, pertaining to other articles of plastic; and heading 4911, HTSUSA, pertaining to other printed pictures, designs, and photographs.

Heading 9505, HTSUSA, provides for festive, carnival, or other entertainment articles, including magic tricks and practical joke articles. Subheading 9505.10, HTSUSA, provides specifically for articles for Christmas festivities, including ornaments and nativity scenes and figures. Customs has held that merchandise is classifiable in heading 9505 as a festive article when the article:

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,

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).

The signs at issue meet requirements (1) and (2) above, but do not meet requirement (3). Signs generally are not articles traditionally associated with the Christmas holiday; nor does the Christmas motif of the signs transform them into traditional Christmas articles. In HRL 956709 (October 25, 1994), a case involving a textile wall hanging that had a Halloween motif, we stated the following regarding HRL 956296 (June 29, 1994), where we held that a textile wall hanging in the form of the word "NOEL," with the letter "O" forming a reindeer face and the letter "L" forming a Christmas stocking filled with candy and presents, was not an article traditionally associated with the Christmas holiday:

[A] wall hanging is not an article traditionally associated with the Christmas holiday, as opposed to a Santa Claus or Christmas tree ornaments. A wall hanging is a wall hanging. It can be designed to take on any number of appearances, from relatively cheap holiday or festival motifs to genuinely artistic decorative accents found in the home or office, just to name two types. Since neither a particular motif nor a particular word or phrase will transform a wall hanging into a festive article associated with a particular holiday or festival, neither the Christmas motif of the "NOEL" wall hanging nor the word itself is sufficient to confer on this wall hanging the tariff status of "festive article."

Based on the foregoing, we conclude that the signs at issue are not classifiable as festive articles in heading 9505, HTSUSA. (Note that it is Customs position that Santa Claus articles must be three dimensional to qualify as festive articles in heading 9505, HTSUSA. See 951459 (March 17, 1993) and 951394 (December 2, 1992).)

As the signs at issue are primarily plastic, classification is suggested in heading 3926, HTSUSA, which provides for other articles of plastics (more specifically, 3926.40.0000, HTSUSA, covering statuettes and other ornamental articles). In addition, as the pictorial representations on the signs are printed thereon, classification in heading 4911, HTSUSA, is also suggested. That heading pertains to other printed matter, including pictures and photographs. The EN's to Chapter 49, HTSUSA, provide that the chapter covers "all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations." Also, "[i]n general the goods of this Chapter are executed on paper but the goods may be on other materials provided they have the characteristics described in the first paragraph of this General Explanatory Note [referring to the language quoted immediately above]. (See HCDCS, Vol. 2, p. 691- 92.) We believe that the foregoing describes the signs at issue. The question is which of the above two suggested headings apply to the signs.

In this regard, we note Legal Note 2, Section VII, HTSUSA, which provides as follows:

Except for the goods of heading 3918 or 3919, plastics, rubber and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49.

Since the signs at issue are printed with pictorial representations that are not merely incidental to the primary use of the goods, this note applies to exclude classification in Chapter 39.

As above, heading 4911 provides for other printed matter, including printed pictures and photographs. The EN's for heading 4911, HTSUSA, provide that the heading "covers all printed matter (including photographs and printed pictures) of this Chapter (see the General Explanatory Note above) but not more particularly covered by any of the preceding headings of the Chapter." (See HCDCS, Vol. 2, p. 699.) As this heading describes the signs at issue more specifically than any other of this chapter, or elsewhere, they are held to be classifiable thereunder.

HOLDING:

The plastic vinyl Christmas holiday signs at issue are classifiable in subheading 4911.91.4040, HTSUSA, which provides for other printed matter: other: printed pictures, designs, and photographs: printed not over 20 years at time of importation: other: other: other. The applicable duty rate is 3.1% ad valorem.

Sincerely,

John Durant, Director

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