CLA-2 CO:R:C:T 089894 JS
Beth Brotman
Louis S. Shoichet
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, NY 10036
RE: Reconsideration HQ 089084; wreath-shaped decorative
Christmas articles; classifiable heading 6304, HTSUSA,
other furnishing articles.
Dear Ms. Brotman and Mr. Shoichet:
In a letter dated October 7, 1991, pursuant to our request,
you submitted detailed arguments regarding Customs precedent on
festive articles as relevant to the reconsideration of HQ 089084
(issued June 13, 1991). The following is our decision on the
request for reconsideration.
FACTS:
You assert that the articles at issue, hanging decorative
items having wreath-like appearances, are properly classifiable
in heading 9505, HTSUSA, as articles for Christmas activities.
Specifically, the various arguments in support of this
classification are the following:
1) Heading 9505 is a "use" provision and has been so
recognized by Customs (e.g., rulings 083330, dated April
10, 1990, 083032, dated July 13, 1990, 085888, dated
August 23, 1990, and 088067, dated February 11, 1991);
therefore, the articles at issue are of the class or
kind to which goods of heading 9505 belong, and the
controlling use (decorative) is the principal use.
2) An article by its shape, design, ornamentation and
appropriate use in connection with a recognized festive
holiday is an article classifiable in heading 9505, and
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the present merchandise are such articles (see 085539,
dated November 17, 1989, 083180, dated February 28,
1990, and 084080, dated July 3, 1989).
3) Customs has improperly limited the scope of articles to
be considered "traditionally associated" with Christmas
on the basis of non-binding Explanatory Notes, and,
moreover, has stated that strict adherence to the
concept of traditional use is improper (HQ 084719 dated
June 14, 1989)
4) Customs has been more liberal in the application of
heading 9505 with respect to festive articles of
other holidays (see, HQ 085320, dated June 10, 1990 and
HQ 085512 December 28, 1989)
ISSUE:
Whether the classification of the subject goods under HQ
089084 is found to be erroneous upon reconsideration.
LAW AND ANALYSIS:
We affirm the principle that heading 9505 is a "use"
provision and that classification of goods thereunder must
indicate a use which is dedicated to a specific holiday, in
accordance with all the relevant terms of the HTSUSA. However,
the decorative wreath-like wall hangings at issue do not qualify
as such due to EN 95.05 which specifically delineates the types
of articles which are considered "traditionally associated" with
the Christmas holiday. The simple application of a Christmas
motif or colors to a seasonal item whose principal use is to
decorate the walls of a home does not make an item classifiable
as a festive article of heading 9505, HTSUSA.
The cases cited in support of this principal are in keeping
with our position: HQ 088067 classified water globes with Santa
Claus and Christmas-tree-bearing figurines in a flurry of snow,
under heading 7013 as glassware for indoor decoration. Like the
articles at issue, the water globes are not of a class or kind of
merchandise that is specifically holiday related; they may be
sold year round in a variety of motifs. Likewise, Customs denied
9505 classification to a bottle cover in HQ 083032 which was
decorated with a Christmas motif. Porcelain figurines with loops
attached to their heads (to facilitate hanging on a Christmas
tree) fell squarely within the "traditional" test, as did the
animated doll-like Christmas figures of HQ 083032.
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We no longer apply the standard that an article "by its
shape, design, ornamentation and appropriate use in connection
with a recognized festive holiday is an article classifiable in
heading 9505."
The Explanatory Notes to heading 9505, while not legally
binding, represent the considered views of classification experts
of the Harmonized System Committee. In the absence of clear and
unambiguous statutory language to the contrary, it has been
Customs practice to follow such terms when interpreting the
HTSUSA. The present notes provide a clear indication of the type
of articles contemplated for inclusion under heading 9505, and we
abide by those references. The articles enumerated, although not
an exhaustive list, are specifically associated with the
Christmas holiday in a traditional manner. HQ 084719 properly
classified a green and red knit stocking under heading 9505, as
Christmas stockings are specifically enumerated in the above
notes. The other stocking classified under that heading failed
the traditional test. Our statement regarding strict adherence
to the concept of traditional use related to the application of
such an interpretation to the style of the item in question; the
article itself is still subject to a traditional test, and must
be of the class or kind that is associated with the Christmas
holiday.
Finally, you assert that Customs has taken a more liberal
approach to the classification of festive articles associated
with other holidays. We note, however, that our approach has
been consistent with the Explanatory Notes which have not singled
out other holidays for a specific listing of examples in the way
that has been done with Christmas. Therefore, the merchandise
which was the subject of the two Headquarters rulings you cited
were appropriately classified as festive articles for Valentine's
Day and Halloween.
HOLDING:
We affirm HQ 089084, which concluded classification of the
merchandise at issue under subheading 6304.92.0000, HTSUSA, was
appropriate.
Sincerely,
John Durant, Director
Commercial Rulings Division