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HQ 957641




March 15, 1995

CLA-2 CO:R:C:T 957641 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.93.0000

David A. Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, N.Y. 10036

RE: Classification of a textile "witch's face" wall hanging; festive, carnival or other entertainment article; other furnishing articles of textile materials; Heading 6304, HTSUSA; HRL 956296 (6/29/94); HRL 956709 (October 25, 1994).

Dear Mr. Eisen:

This is in response to your letter of January 20, 1995, on behalf of your client, Avon Products, Inc., in which you request a binding classification ruling for a textile "witch's face" used as a decorative article. A sample was submitted for Customs' examination.

FACTS:

The submitted item is a pre-production sample of a stuffed textile witch's face which is to be used as a decorative wall hanging. The article is constructed of 65 percent polyester and 35 percent cotton woven fabric. The article incorporates a battery-operated sound and light mechanism located in a "Velcro" (tm) compartment on the back of the article. When depressed, the sound and light mechanism emit a scary laughing noise and the eyes of the witch blink on and off. The face and hat of the witch figure are decorated with painted features and there is a hanging cord located in the rear.

ISSUE:

Whether the subject article is classifiable as a festive article under heading 9505, HTSUSA, or as an "other furnishing article" under heading 6304, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

The issue presented in this ruling is the same as that presented in two recent Headquarters Ruling Letters (HRL's) issued to you on behalf of Avon Products, Inc.. See HRL 956296, dated June 29, 1994, and HRL 956709, dated October 25, 1994. Those rulings dealt with the classification of textile wall hangings which formed the words "NOEL" and "BOO." Both articles were fitted with cords with plastic suction cups by which the articles were to be hung from windows.

In those rulings this office set forth criteria for the classification of festive articles as provided for in various Headquarters rulings. With regard to the classification of festive articles under heading 9505, HTSUSA, this office has consistently stated that merchandise is classifiable in this manner 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).

In HRL 956296, Customs held that the "NOEL" wall hanging met the first
two criteria, but not the third. This office held:

"... when examining the wall hanging, as a whole, it is evident that the article is not traditionally associated or used with the particular festival of Christmas. The wall hanging is not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional festive articles. You will note that the articles cited within the EN, for instance, Christmas trees, Christmas tree ornaments, nativity scenes, Christmas crackers, Christmas stockings, and imitation yule logs, are named articles which in their entirety are traditionally used or associated particularly with Christmas. Similarly, we have considered the form of Santa Claus to qualify as a named article which in its entirety is used with Christmas.

Although we recognize that wall hangings with this type of motif are sold during the Christmas or winter season, it remains our position that the motif of an article is not dispositive of its classification and that such factors do not transform an item into a festive article. Customs classifies, as festive articles, those articles, which as a whole, without principally relying on the articles' motif, are identifiable as being traditionally associated or used with a particular festival. See HRL 952889, issued March 17, 1993. Furthermore, it has been our position that a word, phrase, or slogan associated with a particular festival will not transform an item into a festive article. See HRL 951143, issued January 15, 1993."

In HRL's 956296 and 956709, Customs held that wall hangings are not articles traditionally associated with Christmas or Halloween. We further noted that 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 Halloween motif of the "BOO" wall hanging, nor the words themselves, are sufficient to render these items "festive articles" for tariff classification purposes.

The instant case presents an analogous situation. Neither the Halloween motif of the "witch's" face wall hanging, nor the scary sounds emitted by the wall hanging when squeezed, serve to render it an article traditionally associated with Halloween. Consistent with the holdings set forth in HRL's 956296 and 956709, the Halloween wall hanging at issue is not classifiable as a festive article in heading 9505, HTSUSA.

The article is classifiable under heading 6304, HTSUSA, as an other made up textile article.

HOLDING:

The "witch's face" wall hanging is classifiable under subheading 6304.93.0000, HTSUSA, which provides for, "[O]ther furnishing articles, excluding those of heading 9404: other: not knitted or crocheted, of synthetic fibers," dutiable at a rate of 10.5 percent ad valorem. The applicable textile quota category is 666.

The designated textile and apparel categories may be subdivided into parts. If so, the 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 your client 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 updated weekly and is available for inspection at a local Customs office.

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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