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HQ 962100




November 9, 1999

CLA-2 RR:CR:GC 962100 JRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.25

Port Director
Port of New York/Newark Area c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-98-101802; Electric light sculptures of wire, outdoor; Festive Christmas articles; Reindeer and present-filled sleigh figures; Heading 9505, Christmas Ornament; Midwest of Cannon Falls v. United States; HQ 961101, HQ 962965; Chapter 95, Note 1(t); Heading 9405; Primal Lite, Inc. v. United States

Dear Port Director:

This is our decision on Protest 1001-98-101802 filed against your classification decision, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain electric light sculptures of wire made in China. In preparing this decision, consideration was given to the supplemental submission dated August 24, 1998. The entry under protest was liquidated on March 13, 1998, and this protest was filed on June 10, 1998.

FACTS:

The merchandise consists of outdoor electric light sculptures made in China. The electric light sculptures are composed of pre-assembled white or dark-colored wire frames depicting the outline of either a sleigh or reindeer. Attached to the wire frame by clips are light sets containing 210 clear light bulbs. The specific figures under consideration on this protest are: (1) 48-inch standing reindeer (item #9805516); (2) 48-inch jumping reindeer (item #9805508); and (3) 42-inch sleigh (item #9805524). All of the light sculptures are designed to be displayed outside of the home during the Christmas season. The light bulbs on the wire frames enables the figures to be illuminated and are visible at night. Commercial literature on the three articles was included in the protest.

The protestant entered the merchandise on May 2, 1997, under subheading 9405.40.60, HTSUS, as other electric lamps and lighting fittings of base metal. The entry was liquidated as entered.

The protestant now claims that the articles are classified in subheading 9505.10.25, HTSUS, as other Christmas ornaments or, in the alternative, other festive articles for Christmas in subheading 9505.10.50, HTSUS. Protestant asserts that prior Customs rulings, namely HQ 952890, dated March 16, 1993, which held that certain outdoor electric lawn ornaments were not classifiable as festive articles in heading 9505, HTSUS, are no longer applicable since the court decision in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest). Protestant argues that the presence of lights should not preclude the light sculptures from classification under heading 9505, HTSUS.

ISSUE:

Whether the electric light sculptures are classifiable as festive Christmas ornaments under heading 9505, HTSUS, or as other electric lamps and lighting fittings of base metal under heading 9405, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed within 90 days after but not before the notice of liquidation (19 USC 1514(c)(3)(A)) and the matter protested is protestable (19 USC 1514(a)(2) and (5)).

The General Rules of Interpretation (GRI’s) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings 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’s 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

9405 [o]ther articles of plastic and articles of other materials of headings 3901 to 3914

9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof

Festive, carnival or other entertainment articles are provided for in heading 9505. However, Chapter 95, Note 1(t), HTSUS, specifically excludes "electric garlands of all kinds" from heading 9505 and refers them to classification under heading 9405. See Primal Lite, Inc. v. United States, Slip Op. 98-1562, 1999 U.S. App. LEXIS 16014 (July 16, 1999) aff’g, 15 F. Supp. 2d 915, 22 CIT ___ (1998). Note 1(l) to Chapter 94, HTSUS, states that "[t]his chapter does not cover: ...decorations (other than electric garlands) such as Chinese lanterns (heading 9505)." If the lighted lawn sculptures are classifiable as other Christmas ornaments under heading 9505, then the presence of lights should not preclude the light sculptures from classification under heading 9505, HTSUS. See HQ 962965 of this date for a similar ruling.

Prior to Midwest, Customs consistently held that certain ornaments were not classifiable as festive articles in heading 9505 based on a narrow interpretation of the limited exemplars of traditional, festive articles cited in the Explanatory Notes to heading 9505. See HQ 952890, March 16, 1993. In Midwest, the Court of Appeals for the Federal Circuit addressed the scope of heading 9505; 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, 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 the celebration of, and 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 "festive articles," decorative household articles which are representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 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 articles related to holidays and symbols not specifically recognized in Midwest or in the ICP, 32 Customs Bulletin 2/3 at p. 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), 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.

The merchandise at issue satisfies the three prong test for heading 9505. First, they do not contain any precious or semiprecious stones, precious metal or metal clad with precious metal. The Midwest Court found that the term "ornament" should not be confined to objects that hang on a Christmas tree. Light sculptures also known as lawn ornaments are generally used for decorating or adorning the outside of the residence for the Christmas holidays. The merchandise functions primarily as an outdoor decoration used in the celebration of Christmas, a recognized holiday. As such, they would fall into the broader definiton of an ornament. Reindeer, like snowmen, are symbols that raise the possibility of a "festive" classification. Generally speaking, reindeer are recognized symbols of the winter season, but not necessarily associated with the celebration of a particular holiday. See Id. at p. 177 ("IV. Additional Motifs, Symbols or Representations, A. Decorative Items, ‘In 9505.10, Reindeer’").

The lawn ornaments in issue are in the motif of standing and jumping reindeer and a sleigh filled with presents. Do these reindeer and sleigh ornaments fall within the class or kind of ornament, which is principally, if not exclusively, used only during the holiday season for the specific purpose of decorating or ornamenting the home or Christmas tree? In Headquarters Ruling Letter (HQ) 961839, dated March 9, 1999, Customs found that the ordinary snowmen, which are not necessarily considered "festive" for classification purposes, were so embellished in the "Snowman Family Screen" that the article had become part of the class of festive articles when the Carborundum factors were applied. In contrast, in HQ 961519, dated February 24, 1999, a "Scarecrow Snowman Lawn Ornament" was found not to belong to the class or kind of "festive articles" and was classified in subheading 6307.90.99, HTSUS. See also HQ 961511, dated February 24, 1999.

With respect to the general criteria of Carborundum applied to this case, we note that in terms of the general physical characteristics, the reindeer and sleigh ornaments have no functional aspects and are exclusively decorative. The ultimate purchaser would have the expectation of using the article to decorate the outside of their home during the day and night hours of the holiday season. The channels of trade for this type of merchandise would be in stores selling decorative seasonal Christmas articles for the home; however, these stores would also typically sell a variety of other home decorative articles. The environment of the sale appears to be part of a Christmas or holiday sales promotional effort since this particular item is advertised in a special 4-page holiday circular of the importer’s direct marketing catalogue that contains seasonal articles used in and for the home for the Christmas holiday. The lawn ornaments are grouped in the circular with other seasonal Christmas-related items such as an illuminated 19-inch Santa face; lighted 49-inch holiday signs, entitled, "Merry Christmas" and "Happy Holidays;" an illuminated 40-inch Santa figure, and a lighted wire angel. The recognition in the trade apparently would be as Christmas articles.

An argument can be made that a present-filled sleigh is an object that is consistent with a Christmas theme and has been traditionally associated with Santa Claus, an accepted symbol of the Christmas holiday. As it was noted in HQ 961839, not all snowmen are automatically festive; likewise, not all reindeer are automatically festive. In the context of the grouping of the merchandise, the lighted reindeer decorations appear to be within the class of other decorative Christmas ornaments that are bought, sold and used during the Christmas season. The use of the reindeer as Christmas ornaments to decorate a lawn or rooftop has been established. The Carborundum factors taken together leads to the conclusion that the lighted reindeer and present-filled sleigh ornaments, are within the same class of merchandise principally, if not exclusively, used to decorate the home during the Christmas holiday. The instant sleigh and reindeer ornaments which decorate a lawn or rooftop, therefore, qualify as festive articles of heading 9505, specifically subheading 9505.10.25, HTSUS. We note, however, that the mere appearance of an article in a Christmas catalog is not sufficient by itself to bring that article into the class of festive articles, although such an appearance is useful evidence toward that end.

HOLDING:

The lighted reindeer and present-filled sleigh ornaments (#9805508, 9805516, and 9805524) are classified as "festive" articles under subheading 9505.10.25, HTSUS, the provision for "[f]estive, carnival or other entertainment articles...parts and accessories thereof; [a]rticles for Christmas festivities and part and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther."

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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