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HQ 965767




July 31, 2002

CLA-2 RR:CR:GC 965767 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40; 9405.50.30

Ms. Barbara Dawley
Mr. Jeffrey A. Meeks
Meeks & Sheppard
1735 Post Road, Suite 4
Fairfield, CT 06430

RE: Reconsideration of NY I82502; Reindeer-shaped Silver-plated and Brass Candelabra; Midwest of Cannon Falls, Inc. v. United States

Dear Ms. Dawley and Mr. Meeks:

This is in response to your request for reconsideration of New York Ruling Letter (NY) I82502, issued June 7, 2002, under the Harmonized Tariff Schedule of the United States (HTSUS), concerning the classification of a reindeer-shaped silver-plated and brass candelabra.

In NY I82502, the Director, National Commodity Specialists Division, New York, determined that the subject candelabra were classified in subheading 9405.50, HTSUS, which provides, in part, for non-electrical lamps and lighting fittings, other.

Your letter stated that the decision of the Court of Appeal for the Federal Circuit in Midwest of Cannon Falls, Inc. v. United States, as well as the decision of the Court of International Trade in Park B. Smith v. United States, leads to a different result in NY I82502. You supplemented your arguments in a telephone conference with members of my staff on July 24, 2002, and by providing additional information.

FACTS:

The reindeer-shaped silver-plated and brass candelabra measures 11½" in width and 20" in height. The width is provided by the antlers that hold 10 spherical votive candles. The articles are claimed to be designed for, and marketed as a festive decoration to be placed on a mantle or to be used as a table centerpiece during the Christmas holiday season. It is claimed that the articles will only be advertised in Christmas and holiday catalogues and will be available in stores for the holiday season.

ISSUE:

Whether the reindeer-shaped silver-plated and brass candelabra are classified in heading 9405, HTSUS, as other non-electrical lighting fittings or as other articles for Christmas festivities.

LAW AND ANALYSIS:

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

The HTSUS provisions under consideration are as follows:

Lamps and light fittings . . . , not elsewhere specified or included:

Non-electrical lamps and light fittings

Festive, carnival or other entertainment articles, including magic tricks and practical joke article; parts and accessories thereof

9505.10 Articles for Christmas festivities and parts and accessories thereof

Heading 9405, HTSUS, covers all lamps and lighting fittings, whether or not electric, not elsewhere specified or included. Note 1(l) to Chapter 94 excludes from the coverage of the chapter "decorations (other than electric garlands) such as Chinese lanterns (heading 9505)." Therefore, it is indicated that a decoration such as a Chinese lantern is properly classified in heading 9505, HTSUS, and any other lighting fitting or fixture would be principally considered to be classified in heading 9405 HTSUS.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities used as Christmas ornaments are provided for in subheading 9505.10.25, HTSUS.

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.

Customs views these candelabra as principally functional three-dimensional articles. They differ from most of the products readily found to be festive articles of heading 9505, HTSUS, in that they do not present an accepted symbol of a particular holiday. Reindeer, alone, do not appear to represent Christmas; although Customs has classified some reindeer representations as festive articles of heading 9505, HTSUS, when they were presented harnessed as a team along with a Santa figure or a sleigh filled with wrapped Christmas packages. See, e.g., NY F89282, issued July 18, 2000, in which a candle with Santa Claus and reindeer ceramic decorations were affixed to a candle and could not be removed without damage to the candle; Headquarters Ruling Letter (HQ) 962100, issued November 9, 1999, in which lighted outdoor holiday ornaments depicting a sleigh or reindeer were classified as festive articles. Stuffed reindeer figures have been classified as other toys in heading 9503, HTSUS, (HQ 953162, issued May 10, 1993) while a three-dimensional reindeer head on a rug designed with comical reindeer elements presenting red bows and green boots was classified in heading 9505. See NY H81107, dated June 8, 2001. In NY F85759, issued April 17, 2000, a candle representing a Christmas tree was treated as a festive article, but the attachment of a flat reindeer design on a cup is treated as a candle in heading 3406, HTSUS.

The cases described supra establish that Customs is willing to classify reindeer-shaped articles in the festive provisions when the article is clearly associated with the festive holiday of Christmas. Because the reindeer design shows up in a number of products as part of a "North Woods" motif it becomes necessary to differentiate a "Christmas reindeer" from any reindeer image one might encounter. Your supplemental arguments dated June 28, 2002, contained in the request for reconsideration, highlights the difficulty. You note on p. 3, that "Reindeers are clearly associated in most people's minds with snow and winter climates and, by implication, to the winter holiday season and Christmas." Emphasis supplied. Because there is a strong connection between reindeer and snow and winter or the winter holiday season, a functional candelabra shaped like a reindeer, standing alone, does not rise to the level of being associated with the particular holiday of Christmas or even the Christmas season. The reindeer-shaped candelabra might be considered appropriate to display as a home decoration well after Christmas, if the winter season is still in process.

With respect to the Carborundum factors, set forth, supra, the general physical characteristics of the articles is that they are the approximate size for candelabra used on tables, sideboards, and mantels and they hold 10 candles which are fully functional and intended to be lighted to provide the desirable visual impact. Customs does not regard the colors silver or gold, by themselves, as indicative of Christmas. See HQ 962475 and HQ 963636, both issued October 10, 2000.

The expectation of the ultimate purchaser would be to buy this product to provide decorative light. In the modern world, only a very few circumstances would dictate that candelabra such as these would provide the principal light to a room. The heading includes non-electric lamps such as these which are typically decorative to some degree. The decorative nature of the articles does not cancel their functional characteristics. The light-giving capability is an important feature as evidenced by a separate catalog item number and pricing for a "set of 12" "Ivory Sphere Votives."

The channels of trade in which this merchandise moves appear to be in retail stores specializing in kitchen, household, and related goods. The goods would not appear in "Christmas Sections" in the stores because at the Christmas season, goods that are popular at the holiday season are displayed throughout the store. Such goods might include mulling spices for cider or wine, packaged peppermint candies, "stocking stuffer" small kitchen implements, fancy packaged jams and preserves or teas.

The environment of the sale (accompanying accessories, manner of advertisement and display) is in the retail sales described supra, outside of catalog sales. In both retail and catalog, the articles are sold alongside articles that are used year round. In the catalog portions provided with the request for reconsideration, the candelabra are pictured on a mantel with a beveled mirror. The mirror is also a catalog item with neither seasonal nor festive aspects. It would be useful throughout the year.

The economic practicality of using the import in a manner consistent with the class does not have easy application within the facts of this case. You claim that the article falls into the class of seasonal festive articles. Customs disagrees that the product is so designed and used as to be suitable for sale only in connection with the Christmas holiday. Many articles have their best sales at the Christmas season, e.g., Teddy Bears, toy drums, fruitcakes, and some have claimed, even personal computers. This does not mean that they are "seasonal items" or "festive articles" in the tariff sense. There is no doubt that so-called Christmas toys, fruitcakes, and personal computers are marked down after the passing of Christmas, but that fact alone does not confirm their identity as festive articles. You have provided sales figures that indicate that the articles are imported in anticipation of the Christmas season and that the bulk of the sales are during the months of October, November, and December. We have no reason to dispute the sales volume claim, but note that some products have a natural affinity to a season and would consequently be impractical to feature out of season.

The articles do not meet the standards for festive articles of heading 9505, HTSUS. Customs finds the reindeer-shaped candelabra to be actual functioning light fixtures for candles, intended to be used as such. We further find that they are not of a design that Customs recognizes as automatically associated with the Christmas holiday, because they function throughout the year, most particularly during the season when it is dark early in the evening. We find the reindeer-shaped silver-plated and brass candelabra to be properly classified in subheading 9405.50.30 or 9405.50.40, HTSUS, depending on whether brass or silver plated, respectively.

HOLDING:

The reindeer-shaped candelabra are classified in subheading 9405.50.30 or 9405.50.40, HTSUS, depending on whether brass or silver-plated, respectively.

NY I82502 is AFFIRMED.
Sincerely,

Myles B. Harmon, Acting Director

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