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HQ 962474




February 1, 2001

CLA2 RR:CR:GC 962474 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.10.8000; 4823.90.1000; 4823.90.2000; 9502.10.0060; 9505.10.2500; 9505.90.6000

Port Director
U.S. Customs Service
Port of Baltimore
40 South Gay Street
Baltimore, Maryland 21202

RE: Protest 130398100140; Christmas and Halloween Articles; festive and other decorative articles

Dear Director:

This is a decision on Protest 130398100140 against your decision in the classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated on April 3, 1998, and the protest timely filed on April 24, 1998. Our decision follows:

FACTS:

The merchandise at issue in this protest consists of 33 items claimed to be classified in subheadings 9505.10.2500, HTSUS, or 9505.90.6090, HTSUS, under the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other," or the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other," respectively. The protestant claims that the articles are classified as Christmas articles or Halloween articles.

In examining the photographs provided by the protestant, some articles appeared to have the potential to qualify for classification as festive articles, if additional information were present, while other articles by their physical appearance appeared to be classified elsewhere. In a letter dated November 18, 1999, we requested additional information and evidence to support the claim that the articles qualified as festive articles, based on the so-called Carborundum factors. The protestant was unable to provide any of the needed evidence and notified Customs of this fact in a letter dated December 13, 1999. As a result, this protest will be decided without discussion of the potential evidence that might have perfected the claim and will be based solely on the representation of the physical appearance of the article, when provided by the photographs.

The protest covers item #'s GTMWC-40,-41,-42,-43,-44,-45,-46,-50,-51,-53,-55,-56,-57,-58,-59,-60,-61,-62,-63, and GTMWH-36, as Christmas-related articles. It also covers item #'s GTMWH-1,-2,-4,-6,-7,-8,-10,-14,-15,-17,-18,-20, and -25, most of which are Halloween-related articles.

ISSUE:

Whether the above-enumerated articles are classified as liquidated or whether any or all of the protested articles are classified within heading 9505, as festive articles or elsewhere.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, 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 GRIs may then be applied.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10, HTSUS. Articles for festivities other than Christmas are classified in subheading 9505.90.

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. As indicated supra, Customs has not been provided with any Carborundum evidence. Therefore, classification under heading 9505 will be limited to those articles which present in their "general physical characteristics", seen in photographs when available, recognized symbols of the recognized holiday. In addition, ornaments designed for hanging on Christmas trees can usually be identified by their photographs showing their general physical characteristics and they, also, are classified in heading 9505.

With respect to the merchandise under consideration in this protest, all appear to be decorative articles or dolls.

Item #'s GTMWC -50,-51,-53,-55,-56,-57,-58,-59,-60,-61,and -62 are classified in subheading 9505.10.25, HTSUS, the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other."

Item #'s GTMWH -14,-15,-17,-18,-25,and -4 are classified in subheading 9505.90.60, HTSUS, the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other." Item #'s GTMWH -1,-10,-2,-20,-6, and -7, are classified in subheading 9502.10.0060, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed, Other."

Item #'s GTMWC -40, -44, -45, -46, and GTMWH -36 are classified in subheading 4823.90.2000, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Of papier-mâché."

Item #'s GTMWC -41,-42,-43, and -63 are classified in subheading 4823.90.1000, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Of paper pulp."

Item # GTMWH-8 is classified in subheading 4602.10.8000, HTSUS, the provision for "Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from article of heading 4106; articles of loofah: Of vegetable materials: Other: Other: Other."

HOLDING:

The protest should be DENIED except to the extent that classification as indicated herein results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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 or entries 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
Commercial Rulings Division


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