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HQ 962696




February 28, 2000

CLA-2 RR:CR:GC 962696 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4020

David M. Murphy, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Ave.
New York, NY 10167-3397

RE: “Hand Sculpted Santa Claus with Christmas Tree Resin Box”; Midwest of Cannon Falls, Inc. v. United States

Dear Mr. Murphy:

This is in response to your letter of February 22, 1999, on behalf of Cardinal, Inc., in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on a “Hand Sculpted Santa Claus with Christmas Tree Resin Box.” We regret the delay in providing this response.

FACTS:

The resin Santa Claus/Christmas tree box (Style G 6443) is stated to be manufactured and sold specifically for the Christmas holiday season. It is molded to create an intricate surface and is hand-decorated with sparkle paint in red, green, white, and gold. It consists of a conical shape, about 3 inches in diameter and about 4¼ inches high to depict a Santa Claus standing in front of a decorated Christmas tree. A decorative gold colored metal band extends around the tree and on the other side is incorporated into the belt of the Santa figure. The “belt buckle” becomes the clasp for opening the article which is hinged at the back of the Christmas tree side. Opening the box discloses a cylindrical cavity about 1¾ inches in diameter and about 1 inch in height. Although the container is hollow, it is not readily apparent what would be kept in it, if anything. It is too large for a common pillbox and the article is far too bulky to be carried in the pocket or purse. It is about three times the size and bulk of the typical trinket box and as such would be large enough to decorate a mantle, shelf, or side table in a home.

ISSUE:

Whether the Hand Sculpted Santa Claus with Christmas Tree Resin Box is classified in heading 9505, HTSUS, as festive articles, or elsewhere.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 (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.

The HTSUS headings under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914;

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles.

Although the Hand Sculpted Santa Claus with Christmas Tree Resin Box, as an article of plastics, is potentially described by both heading 3926 and heading 9505, consideration must be given to relevant section and chapter notes, as well. Note 2(v) to chapter 39, HTSUS, which covers heading 3926, provides that this chapter does not cover articles of chapter 95. Thus, if the Hand Sculpted Santa Claus with Christmas Tree Resin Box is classifiable under heading 9505, then Note 2(v) to chapter 39 precludes classification under heading 3926 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 the Informed Compliance Publication on the Classification of Festive Articles (ICP) published in the Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Midwest 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 ICP, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “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, the article is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. It clearly bears motifs associated with the holiday of Christmas. If the interior of the “box” has any real function, then it could be noted that the symbols are three dimensional. If the box has no function or utility, the article is principally decorative. Your letter suggests that the box might be used for the presentation of a small gift or to hold extra wire ornament hangers. In any event, the use of the article is not readily apparent beyond its ornamental and decorative characteristics.

We regard this article as distinguishable from porcelain trinket boxes that have been the subject of other Customs rulings. See HQ 961874, issued September 14, 1999, and HQ 962565, issued February 3, 2000. In those rulings Customs determined that the porcelain boxes at issue belonged to a class of collectibles that are sold all year long. Similar porcelain boxes with a variety of motifs are regularly advertised for sale in collectibles catalogues as well as in internet-based auction sites. This box, while not porcelain, is also different in its size and bulk and the degree of finishing. The porcelain trinket boxes that have been the subject of the Customs rulings were very small, easily held in the hand, and derived their character in part from the miniature nature of the decoration.

HOLDING:

The Hand Sculpted Santa Claus with Christmas Tree Resin Box is classified in subheading 9505.10.4020, HTSUS, as “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Of plastics, Other.”

Sincerely,

John Durant, Director

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