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HQ 957502




May 22, 1995

CLA-2 R:C:F 957502 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5020; 6304.92.0000

Messrs. Steven H. Becker and Karen Bysiewicz Coudert Brothers
Attorneys at Law
1114 Avenue of the Americas
New York, New York 10036-7794

RE: Classification of an advent calendar and two wall hangings

Dear Messrs. Becker and Bysiewicz:

This is in response to your letter, on behalf of your client, Canasa Trading Corporation (West), dated October 28, 1994, in which you request a binding classification ruling for an advent calendar and two wall hangings. You submitted three samples. In a telephone conversation of February 2, 1995, you declined having a meeting as requested in your original submission.

FACTS:

You believe that the merchandise at issue should be classified as festive articles in heading 9505. One item, the "Disney Advent Calendar" is a panel composed of a velvet material backed with a cotton woven fabric. The panel is 20 inches by 18 inches and contains 24 numbered pockets which frame the panel on three sides. Ornaments can be placed in each pocket marking the days from December 1 through 24. The center of the panel shows Disney characters around a Christmas tree. A dowel is inserted along the top edge of the calendar. A chord attached to the dowel allows the calendar to be hung.

The other two items are wall hanging called "Goofy as Santa" and "Pooh Bear as Santa".
These are textile items stiffened with cardboard and stuffed with polyester fiberfill to create a soft sculptured effect. They both depict famous cartoon characters. The "Goofy" one portrays a Christmas scene with a tree, wreath, gifts and the words "Ho Ho Ho." The "Pooh" one portrays the characters in a winter skating scene with a Christmas tree and the words "Merry Christmas." Your fax dated April 25, 1995, states that these two wall hangings will consist of 100% cotton fabric shells (including 100% cotton velveteen). The filling will consist of cardboard and polyester. You indicate that the cotton fabric creates the commercial appeal of the articles covering the entire surface area.

ISSUE:

Whether the wall hangings are classifiable as festive articles or other furnishing articles.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. 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 (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 provides for, inter alia, festive, carnival and other entertainment articles. The ENs 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.

We agree with your claim that the advent calendar meets all three of the above criteria. First, it is not purchased because of its extreme worth or intrinsic value (as would be the case with a decorative, yet costly, piece of art or crystal). Next, it functions primarily as a decoration. Finally, when examining the advent calendar, as a whole, it is evident that it is used with the particular festival of Christmas, specifically in anticipation of the event. The advent calendar itself is designed to count down the days until Christmas. A child may place an ornament, either a candy cane, Santa, toy soldier, or gold star, in the calendar pockets each day until all the numbered pockets are filled, by Christmas day. Additionally, we note that Customs has ruled in Headquarters Ruling Letter 089095 (July 16, 1991) that a Christmas advent calendar is an item "traditionally used at Christmas festivities." Accordingly, the advent calendar is properly classifiable in subheading 9505.10.5020, HTS.

The other two wall hangings do not meet the above-cited criteria indicative of a festive article. The holiday motif is not dispositive of their classification as festive articles. We note that the raised soft sculptures, while not exactly intrinsically high in value, are quite worked. We concede that they function primarily as decorations. However, when examining them as a whole, they appear to be nothing more than textile wall hangings with a holiday motif.

You claim that the wall hangings should be classified as Santas because they depict Goofy and Winnie the Pooh dressed-up like Santa. We disagree. They are not meant to depict the Santa character itself but other recognizable characters in Santa costume. They are not, in effect, Santa for tariff classification purposes, because the only Santa Claus permitted in heading 9505 is the fully three-dimensional figure. The submitted wall hangings are not identifiable as Santa at the time of importation. Accordingly, they are classified as other furnishing articles and fall into heading 6304 HTSUS.

We classify the other furnishing articles according to the subheading that describes their fiber content whether natural or synthetic. Under GRI 6, for legal purposes, the classification of goods in the subheadings of a heading shall be determined according the to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

According to GRI 3(b), mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

You state that cotton covers the entire surface area of the articles; the characters and background are all made of cotton. In contrast, the unseen cardboard and polyester filling compose a minor or insignificant portion of the whole article. We find the cotton fibers impart the essential character of the wall hangings. Therefore, the wall hangings are classifiable in subheading 6304.92.0000 HTSUSA.

HOLDING:

We find that the advent calendar is classifiable in subheading 9505.10.5020 HTSUSA, as "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other: Other. The general column one rate of duty is free as of January 1, 1995.

The wall hangings are classifiable in subheading, 6304.92.0000 HTSUSA, as "Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton.", dutiable at 7.1 percent.

Articles classifiable in subheading 6304.92.0000, HTSUSA, fall within the textile category designation 369, which may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. The Status Report on Current Import Quotas (Restraint Levels), issued by Customs, provides current and vital information in this regard.

Sincerely,

John Durant, Director
Commercial Rulings Division

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