Textile Wall Hanging with Thanksgiving or CornucopiaMotif; Festive Article

HQ 961553 March 23, 1999 CLA-2 RR:CR:GC 961553 JGB CATEGORY: Classification TARIFF NO.: 6304.92.00; 9505.90.60 Ms. Evi K.Binder Westrim Crafts P.O Box 3879 Chatsworth, CA 91313 RE: Textile Wall Hanging with Thanksgiving or Cornucopia Motif; Festive Article Dear Ms. Binder: This is in response to your letter of February 25, 1998, to the Customs National Commodity Specialist Division, New York, in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on six designs of woven cotton textile wall hangings. That office responded to you on four designs and referred your letter, together with the samples for item Z96888/253823 (Cornucopia/ “Happy Thanksgiving”) and item Z96888/253823 (Cornucopia/“Give Thanks”), to this office for reply. The wall hangings are manufactured in China. We regret the delay. FACTS: The item numbers are the same for each design and the hangings are differentiated only by the words above the design, namely, “Happy Thanksgiving” and “Give Thanks.” Therefore, they are both described as follows: the hanging measures approximately 16 inches in height by approximately 13 inches in width. It depicts in padded applique, basically in two dimensions, a cornucopia, out of which are spilling a bunch of grapes, two acorns, two pumpkins, an ear of corn, and a plum. The legends, as indicated above, are printed above the figure in an arc. The hanging is affixed to the wall by a jute string that is attached to each end of a wooden dowel. The dowel runs through two loops attached to the top of the hanging.  ISSUE: Whether the hangings are classified in heading 6304, HTSUS, as other (textile) furnishing articles or in heading 9505, HTSUS, as festive articles. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 (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 6304, HTSUS, provides for other furnishing articles, excluding those of heading 9404 (bedding, etc.). Wall hangings of woven cotton are provided for in subheading 6304.92.00, HTSUS, as other furnishing articles of textile materials, not knitted or crocheted, of cotton. The ENs for heading 6304 provide, in pertinent part, that this heading covers furnishing articles of textile materials for use in the home, public buildings, theaters, churches, etc. These articles include wall hangings and textile furnishings for ceremonies. Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS. Although the hangings are described by both heading 6304 and heading 9505, consideration must be given to relevant section and chapter notes. Note 1(t) to Section XI, HTSUS, which covers heading 6304, provides that this section does not cover articles of chapter 95. Thus, if the hangings are classifiable under heading 9505, then note 1(t) to Section XI, precludes classification under heading 6304 and necessitates classification under chapter 95. In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole: 1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and 3. Is associated with or used on a particular holiday. Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998. In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. In considering the Midwest standards, both articles meet the first two criteria and are principally decorative. The words “Happy Thanksgiving” obviously are consistent with that article’s use in celebrating the accepted holiday of Thanksgiving. Therefore, the “Happy Thanksgiving” wall hanging qualifies for treatment as a festive article in heading 9505, HTSUS. In the case of the “Give Thanks” hanging, however, it does not appear to be of the class of festive articles because there is nothing in its appearance or makeup to identify it with a particular holiday. The habit or act of giving thanks for a bountiful harvest or one’s general good fortune is considered socially desirable, but it is not uniquely identified with Thanksgiving Day. As such, the function of the “Give Thanks” hanging, while decorative, is to remind the user to practice a certain type of behavior, probably all year long. Therefore the “Give Thanks” hanging, in lacking an accepted symbol of a recognized festive occasion, does not rise to the standards used with heading 9505, HTSUS. The Carborundum factors would likewise not be satisfied in the case of the “Give Thanks” hanging. The general physical character of the merchandise, while identical to the festive hanging, except for the wording, makes the hanging suitable for general purpose use and eliminates it from consideration in connection with a particular holiday. The expectation of the consumer might be to use the “Give Thanks” hanging at Thanksgiving; however, the consumer might just as likely plan to hang the article on the wall as a permanent house decoration. Moreover, the manner of advertisement and display, while including the sale of Thanksgiving merchandise, would conceivably extend well beyond the Thanksgiving season. In other words, in examining both hangings, it is clear that both would be, indeed, marketed during the Thanksgiving season for sale and use during that time; however, the articles are distinguished from each other by the fact that the “Give Thanks” article would not necessarily be marked down right after the Thanksgiving marketing season, nor would the typical user feel a need to take it down from the wall when the recognized holiday had passed. The “Happy Thanksgiving” hanging is classified in subheading 9505.90.60, HTSUS, under the provision for “Festive, carnival or other entertainment articles, ...and parts and accessories thereof: Other: Other.” Since the “Give Thanks” article is not qualified for classification in heading 9505, as indicated above, it is classified in heading 6304, HTSUS. Specifically, it is classified in subheading 6304.92.00, HTSUS, under the provision for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton,” dutiable under the general column one rate at 6.8 percent ad valorem. The textile category for this provision is 369. HOLDING: The “Happy Thanksgiving” wall hanging is therefore classified as a festive article under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other.” The “Give Thanks” wall hanging is classified in subheading 6304.92.00, HTSUS, under the provision for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton,” dutiable under the general column one rate at 6.8 percent ad valorem. The textile category for this provision is 369. Importers should be advised that due to the changeable nature of the restraint (quota/visa) categories, they should contact the local Customs office prior to importation of the merchandise subject to the textile category, to determine the current status of any import restraints or requirements. The designated textile and apparel category may be subdivided into parts. If so, 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 that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at your local Customs office. Sincerely, John Durant, Director Commercial Rulings Division