CLA-2 CO:R:C:G 086866 WAW
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048
RE: Halloween Patches
Dear Mr. Simon:
This is in response to your inquiry, dated April 4, 1990, on
behalf of your client, Russ Berrie & Company, concerning the
tariff classification of Halloween patches under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). A
sample of the merchandise was submitted along with your request.
FACTS:
The sample merchandise, designated as Item No. 10479, is
described as "Spooky Stick-on Halloween Patches." The
merchandise consists of circular, non-woven textile patches with
a self-adhesive backing which measure approximately two inches in
diameter. The patches will be manufactured in Taiwan.
Counsel for the importer maintains that the sample
merchandise is essentially a decorative article to be used during
the Halloween season. Counsel has stated that the Halloween
stick-on patches are generally purchased by children who use them
to decorate various things such as a book bag, a wall, a door, a
bulletin board, a "trick-or-treat" bag, and as decorations used
for Halloween festivities. Accordingly, counsel argues that the
sample patches are properly classifiable under subheading
9505.90.60, HTSUSA, based on their design and use during a
particular season.
ISSUE:
Whether the sample merchandise is classifiable in Heading
9505, HTSUSA, as a "festive article."
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order. The
subheadings at issue in this case are the following:
(a) 9505.90.60, Festive, carnival or other
entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof:
Other: Other.
(b) 5807.90.20, Labels, badges and similar articles of
textile materials, in the piece, in strips or cut to
shape or size, not embroidered: Other: Other.
(c) 4911.91.40, Other printed matter, including printed
pictures and photographs: Other: Other: Other.
The inquiry in this case centers on the determination of
which of the provisions enumerated above describes the sample
Halloween stick-on patches.
The Explanatory Notes to the HTSUSA, which constitute the
official interpretation of the tariff at the international level,
provide further guidance in determining the scope of each
provision. With regard to Heading 9505, HTSUSA, the provision
for festive articles, Explanatory Note (A) to Heading 9505,
HTSUSA, at page 1590, states 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.
* * *
Articles classifiable in Heading 9505, HTSUSA, generally tend to
have no other function than decoration.
Although an article may have the design or ornamentation
appropriate for use during a specific holiday, it may still not
qualify for classification in the festive article provision. In
the instant case, the stick-on patches are decorative articles
which by their design and colors are intended to be used during
the Halloween season. It is clear, however, that the class or
kind of goods to which these patches belong is not traditionally
associated with Halloween. Patches, as a class of merchandise,
are used all year long, and may have a wide variety of motifs,
many of which would not be considered festive. Consequently, the
instant merchandise does not meet the definition of a "festive
article" under Heading 9505, HTSUSA.
Heading 5807, HTSUSA, provides for labels, badges and
similar articles of textile materials, in the piece, in strips or
cut to shape or size, not embroidered. The Explanatory Notes to
Heading 5807, HTSUSA, state that:
This category includes badges, emblems, "flashes", etc.
of a kind normally sewn to the outer part of wearing
apparel (sporting, military, local or national badges,
etc., badges bearing the names of youth associations,
sailors' cap badges with the name of a ship, etc.).
Inasmuch as the sample patches are not labels and are
normally not sewn to the outer part of wearing apparel, the
articles do not meet the requirements for classification in
Heading 5807, HTSUSA.
Comparison of all the competing headings demonstrates that
Heading 4911, HTSUSA, accurately describes the subject
merchandise. Neither Heading 9505, HTSUSA, nor Heading 5807,
HTSUSA, is applicable in this case. Accordingly, it is Customs
view that an article such as the sample merchandise which is
primarily used as a stick-on patch during the Halloween season,
is not a "festive article" under Heading 9505, HTSUSA, and is
properly classifiable in the provision for other printed matter
in Heading 4911, HTSUSA.
HOLDING:
In view of the foregoing analysis, the Halloween stick-on
patches, designated as Item No. 10479, are properly classifiable
under subheading 4911.91.4040, HTSUSA, which provides for other
printed matter, including printed pictures and photographs:
Other: Other: Other: Other. Articles classified under this
subheading are subject to a rate of duty of 3.1 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division