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HQ 087853


December 5, 1990

CLA-2 CO:R:C:G 087853

CATEGORY: CLASSIFICATION

TARIFF NO.: 5601.22.0090

Ms. Rebecca Cheung
R.H. Macy Corporate Buying
Eleven Penn Plaza
New York, New York 10001-2006

RE: Nonwoven polyester snowman

Dear Ms. Cheung:

You requested a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a snowman made in Taiwan. You submitted a sample along with your request.

FACTS:

The sample submitted, style YN15057-12, is a 12 inch high snowman. Styles YN15057-22 (the 22 inch snowman) and YN 15057- 40 (the 40 inch snowman) will also be imported, but the styles differ only in size.

The body of the snowman is composed of cardboard covered with a white fluffy fabric used to represent snow. The head is manufactured from styrofoam covered with the same material as the body. The eyes and mouth are black paper, and the nose a felt carrot. The snowman also has a wool felt hat with a red ribbon band and a sprig of holly, two red ear muffs, a green velvet scarf around the neck and a pair of red wool felt mittens. The snowman holds a broom in its left arm.

A Customs laboratory report states that the material used to represent snow in the snowman is nonwoven polyester fabric.

ISSUE:

Is the instant snowman classified as a festive article in Heading 9505, HTSUSA, or as an article of wadding in Heading 5601, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the Harmonized Tariff Schedule of the United States Annotated (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.

Heading 9505 covers "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles...." Heading 5601 covers "Wadding of textile materials and articles thereof...."

The Explanatory Notes, the official interpretation of the Harmonized System at the international level, states the following regarding wadding:

Wadding takes the form of a flexible, spongy, high-bulk sheet of even thickness, the fibres in which are readily separable....

Wadding is classified here whether or not bleached, dyed or printed.
The heading also covers wadding on which a small quantity of agglutinating substance has been dispersed in order to improve the cohesion of the surface fibers....

This heading also covers...articles of wadding other than those covered more specifically by other headings of the Nomenclature (see exclusions below)....

The articles of wadding classified here include:

(3) Articles of wadding used for decoration, other'than those having the character of articles of Chapter 95.

Among the articles of wadding not classified here are:

(ij) Festive, carnival or other entertainment articles,
Christmas tree decorations and other articles (e.g., dolls' wigs) of Chapter 95.

[Note: All the emphases above are found in the Explanatory Notes.]

The instant snowman is made of a flexible, spongy, high bulk sheet of polyester fibers, of even thickness. The fibers are readily separable between layers. A small amount of agglutinating substance seems to have been added to improve the cohesion of the fibers. In short, the instant nonwoven fabric meets the definition of wadding set forth in the Explanatory Notes. The snowman's essential character is derived from the wadding, for without it there would be no illusion of snow. All that remains is to consider whether the snowman is a festive article eligible for classification under Chapter 95.

The Explanatory Notes for Chapter 95 state that the chapter covers festive articles including:

(1) Decorations such as festoons, garlands Chinese lanterns, etc., as well as various decorative articles...for
Christmas trees....Cake and other decorations...which are traditionally associated with a particular festival are also classified here. (Emphasis added).

In Customs Headquarters Ruling Letter (HRL) 087160 of August 22, 1990, a case involving a similar item (i.e., a small plastic snowman figure) and a similar issue (i.e., festive articles versus other articles of plastic), we said "The snowman represents a winter theme but not necessarily a Christmas or other festive theme." Customs ruled that the snowman was not clearly festive and was not classified in

Heading 9505. We are of the opinion that the precedent set in HRL 087160 is controlling and find that the snowman before us is merely seasonal and not a festive article.

Inasmuch as the snowman is not a festive article of Chapter 95, it must be classified according to the heading which next most specifically describes it, i.e., as an article of wadding used for decoration. It is therefore classified under the provision for wadding of textile materials and articles thereof...: wadding; other articles of wadding: of man-made fibers: other, in subheading 5601.22.0090, HTSUSA.

HOLDING:

Following the rationale set forth above, the instant snowman is classified in subheading 5601.22.0090, HTSUSA, dutiable at the ad valorem rate of 12.5 perent for products of Taiwan. The textile category is 669.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the retraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise 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 affected. Inasmuch as 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 internal issuance of the U.S. Customs service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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