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HQ 958177




February 6, 1996

CLA-2 RR:TC:TE 958177 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

Port Director
U.S. Customs Service
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049

RE: Decision on Application for Further Review of Protest No. 3001-95-100299, filed April 18, 1995, concerning the classification of "Santa Flags" and "Snowman Flags"

Dear Sir:

This is a decision on a protest timely filed in April 1995, against your decision in the classification and liquidation of an entry made in October 1994, of "Santa Flags" and "Snowman Flags."

FACTS:

You classified the merchandise under subheading 6307.90.9989 (The correct statistical suffix in 1994 should have been shown as 6307.90.9986), HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other," with an applicable duty rate of 7 percent ad valorem.

The protestant claims that the goods should be classified in subheading 9503.90.6090, HTSUSA, the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other, Other," with an applicable duty rate (in 1994) of 3.1 percent ad valorem.

The sample submitted is a rectangular banner measuring approximately 40 inches in length by 28 inches in width. The item is composed of woven polyester fabric that is screen-printed -2-
to depict Santa Claus in a red and white costume holding a blue sack filled with colorful toys, all on a background of green. The banner has a double stitched hem on the sides and bottom, and a top sleeve that measures approximately 1-1/2 inches in diameter. The sleeve allows for the insertion of a pole for purposes of hanging. Descriptive information printed on a cardboard insert indicates that the flag is waterproof, colorfast, and "perfect for hanging indoors or outdoors."

ISSUE:

Whether the Santa flags and Snowman flags are classified in heading 9505, HTSUS, as festive articles, or in heading 6307, HTSUS, as other made up articles.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) 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 GRI.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 state, 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. -3-

Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

The EN to heading 9505, HTSUS, also state that, among other articles, the heading excludes textile flags or bunting of heading 6307.

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.

Although we find that the flags are made of fairly durable material, they are not likely to be purchased for their extreme worth or value (as would be decorative, yet costly, pieces of art or crystal). In addition, their primary function is decorative, as opposed to utilitarian.

Upon examination of the third criterion, we note that flags are mentioned in the EN to heading 9505, as examples of decorations that may be included in the heading if traditionally associated with a particular festival. The EN indicate that, absent this traditional association, textile flags are classified in heading 6307, HTSUS. We do not find these flags to be the type of items traditionally associated with a particular festival such as Christmas. Although Santa Claus is a unique form that traditionally has been associated, particularly and exclusively, with Christmas, only three dimensional forms of Santa Claus, identifiable as such upon importation, are classifiable within -4-

9505 as festive articles. Further, snowmen are not the same types of articles cited in the EN to 9505, as examples of traditional, festive articles, nor do they particularly relate to Christmas. Snowmen are associated with outdoor fun to be had during any of several months in colder climates throughout the world. In light of the above, the Santa and Snowman flags are not classified as festive articles under heading 9505, HTSUS, and must be classified elsewhere.

Heading 6307, HTSUS, covers other made up textile articles, including dress patterns. Note 1(t) to Section XI (the section in which chapter 63 falls) states that "[t]his section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites and nets)." The EN to heading 6307 indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. EN (4) to heading 6307 states that the heading includes, in particular: "Flags, pennants and banners, including bunting for entertainments, galas or other purposes." We thus find that the Santa and Snowman flags were properly classified (in 1994) in subheading 6307.90.9986, HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other."

HOLDING:

The items identified as a Santa Flag and a Snowman Flag are properly classified (in 1994) in subheading 6307.90.9986 (now 6307.90.9989), HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other." The applicable rate of duty is 7 percent ad valorem.

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs -5-
personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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