CLA-2 RR:CR:GC 961465 PH
Port Director
U.S. Customs Service
Post Office 12445
Pittsburgh International Airport
Pittsburgh, PA 15231-0445
RE: Protest 1104-97-100019; suncatchers; festive articles;
Christmas ornaments; Nativity scenes; ornaments of plastics;
ornaments of base metal; essential character; composite
good; GRIs 3(b); U.S. Additional Note 1(a); ENs 70.06;
70.09; Rule 3(b)(IX); Rule 3(b)(X); Better Home Plastics
Corp. v. United States; Midwest of Cannon Falls, Inc. v.
United States; United States v. Carborundum Company; HQs
086166; 087894; 951460; 951909
Dear Port Director:
This is our decision on protest 1104-97-100019, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain "suncatchers." Samples were provided.
FACTS:
Three entries are protested. As you correctly note, the
protest was filed more than 90 days after liquidation of the June
3, 1997, entry and must be DENIED as to that entry. A second
entry, dated May 28, 1997, was ultimately liquidated duty-free
and, in any case, was liquidated after the filing of the protest
so the protest is also untimely as to this liquidation (see 19
U.S.C. 1514(c)(3)(A)). This ruling addresses only the entry
timely protested (the October 7, 1997, entry).
The entry was filed on October 7, 1997, with classification
in subheadings 8306.29.99 and 9505.10.25, HTSUS. The entry was
liquidated on November 14, 1997, with classification in
subheading 3926.40.00, HTSUS. The importer's broker filed this
protest with Customs on December 2, 1997, claiming classification
in subheading 9505.10.25, HTSUS, for "suncatchers" claimed to be
festive in nature and sold only in the two months prior to a
holiday and, for non-festive "suncatchers," in subheading
8306.29.00, HTSUS, on the basis of the relative cost of the
components of the merchandise.
The samples consist of one item with a bird motif, another
with a flower and butterfly motif, and two items with the words
"Merry" and "Christmas". The following articles are claimed to
be festive in nature:
INVOICE # DESCRIPTION
63B "Merry Christmas"
67B Wreath
68B Candy Canes
70B Poinsettia
301B Santa
302B Christmas Balls, Holly
303B Manger
304B Christmas Tree
314B Sleigh Scene
318B Santa
319B Santa
320B Nativity
Each of the samples is framed throughout with metal and
inlaid with epoxy (some with clear colors, others with opaque
epoxy). According to the cost breakdown provided, the cost
attributable to the metal frame of the "suncatchers" is
approximately 70% of the cost of the whole and that of the epoxy
component is approximately 12% of the whole (the remainder is
attributable to packing and profit).
The HTSUS subheadings under consideration are as follows:
3926.40.00 Other articles of plastics and articles of other
materials of headings 3901 to 3914: ... Statuettes
and other ornamental articles.
The 1997 general column one rate of duty for goods classifiable
under this provision is 5.3% ad valorem.
8306.29.00 Bells, gongs and the like, nonelectric, of base
metal; statuettes and other ornaments, of base
metal; photograph, picture or similar frames, of
base metal; mirrors of base metal; and base metal
parts thereof: ... Statuettes and other ornaments,
and parts thereof: ... Other.
The 1997 general column one rate of duty for goods classifiable
under this provision is 2% ad valorem.
9505.10 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.
Goods classified under subheading 9505.10 receive duty-free
treatment.
ISSUE:
Whether the "suncatchers" are classifiable as other
ornamental articles of plastics in subheading 3926.40.00, HTSUS,
other ornaments of base metal in subheading 8306.29.00, HTSUS, or
festive articles in subheading 9505.10, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. Pursuant to
GRI 3(b), goods which are prima facie classifiable under two or
more headings shall be classified as if they consisted of the
material or component which gives them their essential character.
In regard to the "suncatchers" purported to be festive
articles, we note Midwest of Cannon Falls, Inc. v. United States,
20 CIT ___, Slip Op. 96-19 (January 19, 1996); affirmed in part,
reversed in part 122 F.3d 1423 (Fed. Cir. (T) 1997). In this
case, the Court addressed the scope of heading 9505, HTSUS,
specifically, the class or kind "festive articles." It then
applied its conclusions to 29 specific articles to determine
whether they were included within the scope of the class "festive
articles." All of the articles were found to be classifiable as
"festive." This case resulted in new guidelines for the
classification of "festive articles." In general, merchandise is
classifiable in heading 9505, HTSUS, as a "festive article" 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.
Additionally, the Court gave consideration to 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 (1976). Therefore, for those
articles involving holidays, and symbols not specifically
recognized in Midwest, in addition to the above criteria, Customs
will consider the general criteria set forth in Carborundum in
determining whether the particular article is of a class or kind
of good known as "festive articles." Those criteria include: the
general physical characteristics of the article, the expectation
of the ultimate purchaser, channels of trade, environment of sale
(accompanying accessories, manner of advertisement and display),
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 "suncatchers" have no precious or semi-precious stones,
metals or metal clad with precious metal. They function
primarily as decorations used in celebration of and for
entertainment for a particular holiday; Christmas.
Customs has always recognized Christmas as a festive holiday
for tariff purposes. Furthermore, we recognize that hanging
decorations or decorations which may be attached to a window or
other surface are, in general, articles which may be of a class
or kind of decoration considered a "festive article" for tariff
purposes. We note that several of the "suncatchers" incorporate
symbols (Santa, wreath, sleigh scene) specifically recognized as
festive in Midwest. Application of the Carborundum factors
indicates that the other "suncatchers" fall within the scope of
the class, "festive articles." The physical appearance of the
articles, namely as decorative candy canes, poinsettia, Christmas
balls with holly, a manger, and the Nativity scene, indicate
their use with the Christmas holiday. According to the available
evidence, the articles are offered for sale and purchased only
before and during the Christmas season. Finally, the
"suncatchers" are used in the same manner as merchandise which
defines the class, in that they are decorations which incorporate
various symbols of a recognized holiday season.
Based on this analysis, Customs is of the opinion that the
"Merry Christmas", candy canes, poinsettia, Christmas balls with
holly, manger, Christmas tree, and Nativity "suncatchers" are
principally used as "festive articles." As stated above, the
Santa, wreath, and sleigh scene "suncatchers" incorporate symbols
specifically recognized as festive in Midwest. Accordingly,
items 63B, 67B, 68B, 70B, 301B, 302B, 303B, 304B, 314B, 318B,
319B, and 320B are classifiable as festive articles under heading
9505, with the Nativity and manger items classified in subheading
9505.10.30, HTSUS (see HQ 087894 dated December 4, 1990), and the
remaining items in subheading 9505.10.25, HTSUS.
In regard to the remaining "suncatchers" (i.e., those with a
non-festive motif), we note that the components of the
"suncatchers" make up a composite good (see EN Rule 3(b)(IX),
"[f]or purposes of this Rule, composite goods made up of
different components shall be taken to mean not only those in
which the components are attached to each other to form a
practically inseparable whole ..."). The components of the
"suncatchers" are, prima facie, classifiable under different
headings. Therefore, under GRI 3(b), classification of the
"suncatchers" is determined on the basis of the component which
gives it its essential character. EN Rule 3(b)(VIII) lists as
factors to help determine the essential character of such goods
the nature of the materials or components, their bulk, quantity,
weight or value, and the role of a constituent material in
relation to the use of the goods.
Recently, there have been several Court decisions on
"essential character" for purposes of GRI 3(b). These cases have
looked primarily to the role of the constituent materials or
components in relation to the use of the goods to determine
essential character. See, Better Home Plastics Corp. v. United
States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed.
Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F.
Supp. 1245 (CIT 1997), motion for rehearing and reconsideration
denied, 994 F. Supp. 393 (CIT 1998), and Vista International
Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095
(1995). See also, Pillowtex Corp. v. United States, 983 F. Supp.
188 (CIT 1997), in which the Court found that, although GRI 3(b)
could not be applied, if a GRI 3(b) analysis were performed, the
essential character would be based upon the composite good's
function.
Based on the foregoing, we conclude that in an essential
character analysis for purposes of GRI 3(b), the role of the
constituent materials or components in relation to the use of the
goods is generally of primary importance, but the other factors
listed in EN Rule 3(b)(VIII) should also be considered, as
applicable. In this case, the "indispensable function" (Better
Home Plastics, supra) of the article is to "catch" the sun and
illuminate the illustration in the "suncatcher." Since the epoxy
or plastic is the component that "catches" the sun to illuminate
the illustration in the "suncatcher," this criterion indicates
that the essential character of the good is provided by that
component. Insofar as the other factors (quantity, bulk, weight,
and value) are concerned, the available evidence is not
definitive (i.e., although value appears to support the metal
component as providing the essential character, and weight may do
so, bulk and quantity appear to be indeterminate). In view of
the Court decisions giving great weight to the role of the
components in relation to the use of the goods, we conclude that
the essential character of the merchandise is provided by the
epoxy or plastic component so that, under GRI 3(b), the non-festive "suncatchers" are classifiable in subheading 3926.40.00,
HTSUS. This is consistent with past rulings of this office (see,
e.g., Headquarters Ruling Letters (HQs) 086166 dated April 9,
1990, 951909 dated September 29, 1992, and 951460 dated January
11, 1993).
HOLDINGS:
(1) Items 63B, 67B, 68B, 70B, 301B, 302B, 303B, 304B, 314B,
318B, 319B, and 320B are classifiable as festive articles under
heading 9505, with the Nativity and manger items classified in
subheading 9505.10.30, HTSUS, and the remaining items in
subheading 9505.10.25, HTSUS.
(2) The remaining "suncatchers" are classified as other
ornamental articles of plastics in subheading 3926.40.00, HTSUS.
The protest is GRANTED in part (as to items 63B, 67B, 68B,
70B, 301B, 302B, 303B, 304B, 314B, 318B, 319B, and 320B in the
October 7, 1997, entry) and DENIED in part (as to all other
articles in the October 7, 1997, entry; and as to the May 28 and
June 3, 1997, entries for which the protest is untimely). In
accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed, with the Customs Form
19, by your office 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 of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division