CLA 2 RR:CR:GC 961471 PH
Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-97-102814; Suncatchers
Dear Port Director:
This is in response to protest 2704-97-102814, which pertains to the tariff classification of "suncatchers" imported by Joan Baker Designs, Inc., under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this ruling, consideration was given to the supplemental submissions dated October 19 and 21 and November 9, 1998, and March 31, 1999, as well as arguments made by counsel for the protestant in a meeting with representatives of this office on November 10, 1998. We regret the delay.
FACTS:
Three entries, filed on February 3 and March 5 and 17, 1997, are included in the protest against the classification of the merchandise, described as hand painted silk screened suncatchers, in subheading 7013.99.50, HTSUS, as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, valued over $0.30 but not over $3 each (other suncatchers stated to have been painted entirely by hand were also included in some or all of the entries but the classification of those suncatchers (in subheading 9701.10.00, HTSUS, as paintings, drawings and pastels executed entirely by hand) is not protested). The entries were liquidated between May 30 and July 7, 1997. On August 27, 1997, counsel for the importer filed this protest.
The protestant states that the articles are made by the following process: (1) clear plain glass is cut into the desired shape; (2) an artist draws the design onto the glass by hand; (3) each suncatcher is individually hand painted by an artist; (4) a lead frame and chain is thereafter applied by hand to each suncatcher; and (5) a message or text is silk screened onto the painted article.
The silk screening process is described as follows: (1) a transparency of the textual message is prepared and a drawing of the article is used to show where the text is to be placed on the suncatcher; (2) a piece of silk-screen fabric mounted on a wood frame is coated with a light-sensitive emulsion; (3) the transparency with the textual message is placed on the silk screen; (4) the screen with the transparency affixed is placed in bright sunlight or under bright lights, so that the portion of the silk screen shielded from the light by the text remains porous for painting and the remainder is filled in and impervious to paint; (5) the transparency is removed and the silk screen is washed to remove the emulsion from the area shielded from the light by the text; (6) the suncatchers (with the designs painted on them) are laid out flat on a table and the silk screens placed over them with the text positioned where the suncatchers are to receive the message; (7) paint or ink is applied to the silk screens (over the suncatchers) by use of a hand-held plastic board which presses the paint or ink through the porous area of the screen onto the suncatcher; and (8) the silk screens are removed and the suncatchers are put in trays or on racks to dry.
The protestant cites the stipulated case of Joan Baker Designs, Inc. v. United States, CIT Court No. 92-03-00204, decided on January 12, 1995, and Headquarters Ruling letters (HQs) following that case and argues that the silk-screened suncatchers are wholly executed by hand and should be classified in subheading 9701.10.00, HTSUS. The protestant argues that this silk-screening process does not preclude classification in subheading 9701.10.00, HTSUS, on the basis of the rule of de minimis. In this regard, the protestant states that the vast majority of the suncatchers do not contain any textual messages and, for those that do, the cost of the process is, on average, approximately 2% of the total cost of the articles (the protestant states that the prices of the suncatchers to distributors and retailers is the same, regardless of whether they are silk-screened). The protestant also contends that the surface area of the suncatchers taken up by the text is relatively small.
In regard to the de minimis argument, the protestant cites General Note 19, HTSUS, and the definition therein of "wholly of", contending that the interpretation of that term should be applied to the restriction in heading 9701, HTSUS, that the paintings, drawings and pastels therein must be "executed entirely by hand." The protestant cites the predecessor to heading 9701 in the Tariff Schedules of the United States (TSUS) (item 765.03) and the Subpart headnotes for that provision, which preclude from classification in item 765.03, TSUS, articles "made in any part by stenciling, or by photomechanical or other mechanical processes." Because there is no such limiting Chapter Note for heading 9701, although there are such restrictions for headings 9702 and 9703 (see Notes 2 and 3, Chapter 97, HTSUS), the protestant argues that "the presence of an insignificant amount of stenciling, or other similar process ... is permissible, and does not preclude classification under [subheading] 9701.10.00 of articles containing a de minimis amount of lettering added manually, using a silk screen." The protestant cites Alcan Aluminum Corp. v. United States, 165 F.3d 898 (Fed Cir. 1999), for the proposition that:
[A]pplication of the de minimis rule is particularly important in cases where all-or-nothing operation of the statutory language would have results contrary to its underlying purpose. In this case, the intent of [subheading] 9701.10 is to allow paintings executed by hand to be excepted from the imposition of tariffs. It has been shown that the [s]uncatchers consist primarily of scenes and images painted entirely by hand. In fact, with the exception of the silk-screened lettering which contains no colors and occupies minimal space at a negligible added cost and no added value, the entire [s]uncatcher is a painting "executed entirely by hand". To allow the use of the silk screen in applying the lettering to preclude classification under [heading] 9701 would be an all-or-nothing operation of statutory language with results contrary to its underlying purpose. 98% of the cost of a product painted entirely by hand would be subject to an added tariff ostensibly intended to get at the 2% of cost of the product that is in question. This cannot be a result intended by Congress. [Protestant’s March 31, 1999, supplemental submission, page 7.]
As an alternative claim, the protestant argues that the suncatchers should be classified in heading 7020, HTSUS, as other articles of glass, and not in heading 7013, HTSUS, "since the [CIT] held in the Joan Baker ... case referred to above that the [s]un-catchers were not properly classified under [h]eading 7013." Also in this regard, the protestant cites Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), and the Harmonized Commodity Description And Coding System Explanatory Notes (ENs) for heading 7013, for the proposition that the suncatchers do not come within the term "glassware." The protestant provides copies of statements of members of the glassware industry to the effect that the suncatchers are not "glassware" as well as "Buyer’s Guide[s]" for trade shows listing the protestant’s suncatchers and other products under the "general gifts" category and not the "glassware" category.
The protestant argues that certain of the articles are festive articles and should be classified in heading 9505, HTSUS. The suncatchers for which counsel makes this claim are listed in a catalogue of the protestant under the heading "Holiday". Such suncatchers in the February 3, 1997, entry which have text on them (applied by silk screening, according to the protestant) are item #’s MC1797, SC1983, SC1985, SO1884, SO1885, and SO1886 (item #’s LO1283 and SO1882 were in the entry but have no text on them).
Item # MC1797 has an illustration of the three kings with gifts; SC1983 has an illustration of a frog in a red and white snow cap with snowflakes in the background; SC1985 has an illustration of a praying female figure with green and red holly-like leaves; SO1884 has an illustration of the face and head of a Santa-like figure wearing dark glasses; SO1885 has an illustration of an angel-like figure; and SO1886 has an illustration of a mouse-like creature bearing gifts. Each of these items has text related to the Christmas holidays (e.g., "Happy Holidays" and "Have a cool yule!"). Counsel states that these suncatchers are sold at Christmas time and/or to Christmas speciality retail stores and that, according to the protestant, approximately 95% of its sales of these items occur from late August through November and the remaining 5% is for retail stores which sell only Christmas-related items throughout the year.
ISSUE:
Whether suncatchers painted entirely by hand with a textual message applied by a silk screen process are classifiable as glassware of a kind used for indoor decoration or similar purposes in heading 7013, HTSUS; other articles of glass in heading 7020, HTSUS; other ornaments of base metal in heading 8306, HTSUS; festive articles in heading 9505, HTSUS; or paintings executed entirely by hand in heading 9701, 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 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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.
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
The 1997 HTSUS headings under consideration are as follows:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
7020 Other articles of glass
8306 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
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
9701 Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand-decorated manufactured articles; collages and similar decorative plaques; all the foregoing framed or not framed
As the protestant states, in Joan Baker Designs v. United States, CIT Court No. 92 03 00204, suncatchers without any silk-screened text were classified in subheading 9701.10.00, HTSUS, as paintings executed entirely by hand, on the basis of an agreed statement of facts (see Abstracted Classification Decision for Court No. 92-03-00204 as reported in Vol. 29, No. 5, P. 46, of the Customs Bulletin, dated February 1, 1995; see also the Abstracted Classification Decisions for Court Numbers 92 01 00694, 93 01 00017, 93 08 00482, and 94 04 00209, as reported in Vol. 29, No. 8, P. 47, of the Customs Bulletin dated February 22, 1995). In Headquarters Ruling Letters (HQs) 958885 dated June 16, 1997, and 962170 dated September 17, 1998, we held that suncatchers like those in Joan Baker Designs, supra (i.e., executed entirely by hand; not having any silk-screened text), were classified in subheading 9701.10.00, HTSUS, and that Customs previous position (see HQ 089401 dated September 4, 1991) was modified by operation of law.
Thus, to be classified in subheading 9701.10.00, HTSUS, on the basis of these precedents, the suncatchers must have been executed entirely by hand. EN 97.01 states, in regard to the provision for paintings executed entirely by hand, that:
This group covers paintings ... executed entirely by hand. These works may take the form of [various art forms] executed on any material.
As these works must be executed entirely by hand, articles obtained wholly or partly by any other process are excluded, for example, paintings, whether or not on canvas, obtained by photomechanical processes; paintings executed by hand on an outline or on a drawing obtained by ordinary engraving or printing processes; so-called "authentic copies" of paintings, obtained by means of a number of masks or stencils, even if these copies are certified authentic by the artist. [Bold emphasis in original.]
The silk screen process described by the protestant results in a work obtained partly by some process other than "entirely by hand" (i.e., in the process, the ink or paint is applied by a plastic board in a form dictated by the screen; note that EN 97.01, as quoted above, excludes from classification in heading 9701 paintings using "ordinary engraving or printing processes" or "obtained by means of a number of masks or stencils"). See, The New Encyclopedia Britannica, Micropodia, vol. IX, pp. 208, 551-552 (1975), in which the "Silk screen" heading refers to stenciling, and in the "Stenciling" heading the silk screen process is described as follows: "When applied to mass-produced commercial products, such as fabrics, this process [stenciling with a silk screen or fine wire mesh] is called silk screen" and the nature of the process is described as "... forc[ing] [ink] through the open screen by the sharp rubber blade of a squeegee."
The protestant argues that the use of the silk screen process to apply text to the suncatchers does not preclude classification as a painting executed entirely by hand on the basis of the de minimis rule. The principle of de minimis non curat lex ("the law does not care for trifles") may be applied to determinations under the Customs laws (see, e.g., Alcan Aluminum Corp. v. United States, 165 F.3d 898 (Fed. Cir. 1999), and the cases cited therein). The commentary on the rule of de minimis in Customs Law & Administration, by Ruth F. Sturm (3rd Ed., 1995, § 51.13) states, in part:
An ingredient or component may or may not be disregarded for tariff purposes, not necessarily because of the quantity present, but on the basis of varying circumstances, including the purpose of Congress and whether or not the amount of the material has changed the nature of the article or its salability. ...
Materials added for transportation purposes or for the mechanical purpose of holding ingredients together have been disregarded, but not those deliberately added to change or enhance the product. [Among other cases cited for this proposition is Northam Warren Corp. v. United States, 60 CCPA 117, C.A.D. 1092, 475 F.2d 647 (1973), in which the Court affirmed a Customs Court decision that a very small amount (0.15%) of a coal tar derivative could not be ignored under the de minimis rule because "the coal tar derivative ingredient performed a function affecting the appearance of a product whose appearance is part of its functional role ..." (60 CCPA at 121)]. ...
Where a dividing line between two classes of merchandise has been fixed by Congress with certainty and exactness, the de minimis rule is not applicable.
In this case, the text applied to the suncatchers by the silk screen process may be a small part of the cost of the article (2% according to the protestant). However, it takes up a considerably larger percentage (i.e., larger than 2%) of the surface area of the suncatchers and, in any case, is a great deal larger a proportion of the whole article than the 0.15% derivative in the Northam Warren case. Also, as in that case, the text performs a function affecting the appearance of the product. Furthermore, we believe that the use of the term "entirely" in the provision, and the emphasis in EN 97.01 of that term, indicates an intent to fix a dividing line with certainty and exactness, so that the de minimis rule is inapplicable (see Ruth Sturm, above). In this regard, see Bradford Industries, Inc. v. United States, 968 F. Supp. 732 (CIT 1997), affirmed, 152 F.3d 1339 (Fed. Cir. 1998), in which the Court considered the meaning of the word "entirely" in a tariff term. The Court stated that the phrase "entirely coated" means "that the nonwoven must be completely coated or covered by a layer of polyurethane on either side of the fabric" by virtue of the addition to "coated" of "... the modifier ‘entirely’, which means ‘wholly, completely, totally, fully,’" [citing Webster’s New World Dictionary, Third College Edition, at 453 (1988)]. Thus, the Court used "entirely" as a synonym for "completely", about which the Court stated: "Adding the modifying ‘completely’ which means ‘full[y], whole[ly], entire[ly]’ [citation omitted], the Court finds that the term ‘completely embedded’ means that every fiber of the nonwoven must be entirely fixed firmly in the polyurethane." (968 F. Supp. at 735, emphasis added.) Similarly, to be classified as a painting of heading 9701, HTSUS, every part of the painting must be executed by hand.
The protestant contends that the rule of de minimis is applicable to heading 9701, HTSUS, on the basis of the definition of the term "wholly of" in General Note 19, HTSUS. The term under consideration in this case is "entirely" not "wholly of". Furthermore, the definition of "wholly of" in General Note 19, HTSUS, is explicitly stated to be for use "when used between the description of an article and a material" and the definition and statement in regard to the de minimis rule make it clear that this is the context in which this definition is intended to apply. The provision requiring execution entirely by hand is not such a provision (i.e., it does not involve "quantitative concepts" of "an article and a material").
The protestant also argues that a comparison between the Notes of Chapter 97, HTSUS, with the headnotes of Part 11, Subpart A, TSUS, the predecessor to Chapter 97, supports its contention that a de minimis amount of text, applied by the silk screen process, does not preclude classification of the suncatchers in heading 9701. The gravamen of this argument is that headnote 1(iii), Part 11, Subpart A, TSUS, provided that Subpart A does not cover "articles made in any part by stenciling, or by photochemical or other mechanical processes" whereas there is no such restriction in the Notes to Chapter 97, HTSUS, and the only Notes at all similar to the exclusion in headnote 1(iii) (Notes 2 and 3, Chapter 97, HTSUS) apply only to headings 9702 and 9703, HTSUS, not heading 9701. Although it is true that headnote 1(iii), Part 11, Subpart A, TSUS, was not carried over to the HTSUS, the requirement that the covered paintings be executed entirely by hand is in both the TSUS and HTSUS provision. Furthermore, EN 97.01, quoted above, excludes from classification in heading 9701 "... articles obtained wholly or partly by any other process are ..., for example, paintings ... obtained by photomechanical processes; paintings executed by hand on an outline or on a drawing obtained by ordinary engraving or printing processes; so-called "authentic copies" of paintings, obtained by means of a number of masks or stencils ...." This demonstrates a very clear intent to continue in heading 9701, HTSUS, the restriction in headnote 1(iii), Part 11, Subpart A, TSUS.
Accordingly, we conclude that the rule of de minimis is not applicable in this case, where the tariff provision requires execution of paintings entirely, by hand, the applicable ENs repeatedly emphasize that the execution must be entirely by hand, and the silk-screened text "perform[s] a function affecting the appearance of a product whose appearance is part of its functional role" (Northam Warren, quoted above). The suncatchers may not be classified in heading 9701, HTSUS, because they are not "executed entirely by hand."
Before determining whether heading 7013 or 7020, HTSUS, is applicable, we must determine whether the suncatchers are classifiable as articles of glass in those headings, or as statuettes and other ornaments of base metal in heading 8306, HTSUS. That is, the suncatchers are goods consisting partly of glass and partly of base metal, they may not be classified solely on the basis of GRI 1 (except those which may be classified as "festive" articles; see below), and the components of the suncatchers make up a composite good (see EN Rule 3(b)(IX)). Therefore, under GRI 3(b), classification of the suncatchers is determined on the basis of the component which gives them their 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), affirmed CAFC No. 98-1227 (March 16, 1999).
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 glass 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, but the quantity, bulk, and weight appear to support the glass component as providing the essential character of the article. We conclude that the essential character of the merchandise is provided by the glass component so that, under GRI 3(b), the non-festive "suncatchers" are classifiable in heading 7013 or 7020, HTSUS. This is consistent with past rulings of this office (see, e.g., HQs 086166 dated April 9, 1990, 951909 dated September 29, 1992, 951460 dated January 11, 1993, and 961465 dated September 22, 1998).
In its alternative claim that the suncatchers should be classified in heading 7020, HTSUS, if not classifiable in heading 9701, the protestant cites Los Angeles Tile Jobbers, Inc. v. United States, supra, and EN 70.13 for the proposition that the suncatchers do not come within the term "glassware." Also in this regard, the protestant cites the Joan Baker stipulated case, supra, as well as the statements of members of the glassware industry which it has provided.
The article considered in Los Angeles Tile was a "knockdown mosaic" consisting of small multi-colored glass cubes attached to a paper backing. As the Court stated, "[a] knockdown mosaic ... is not a shaped article" and, on that basis, the Court stated "[t]o call [it] ‘glassware’ offends ordinary sensibilities ..." (63 Cust. Ct. at 253). The Court held the knockdown mosaic to be classifiable in the TSUS predecessor to heading 7016, HTSUS, which provides for, among other things, glass cubes and other glass smallwares, whether or not on a backing, for mosaics or similar decorative purposes. Los Angeles Tile is not controlling in this case because, as compared to the knockdown mosaic considered therein, the suncatcher is a shaped article.
Nor does EN 70.13 preclude inclusion of the suncatchers within the term "glassware" as used in heading 7013, HTSUS. The exemplars of office glassware and glassware for indoor decoration provided in EN 70.13 include paperweights, book ends, pen-trays, ashtrays, statuettes, table-centres, and souvenirs bearing views, as well as decorative articles in the form of mirrors but which cannot be used as mirrors due to the presence of printed illustrations. The suncatchers are ejusdem generis with these exemplars (see Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994), "[a]s applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms"). The essential characteristics or purposes of the above listed exemplars are that they are of glass and they are decorative. The suncatchers share these essential characteristics or purposes.
Insofar as the stipulation of the Joan Baker cases, supra, is concerned, the stated basis for the decision was an "[a]greed statement of facts" and the competing tariff headings were 7013, 9701, and/or 9405 (Customs Bulletin and Decisions, vol. 29, no. 5, p. 46, February 1, 1995; vol. 29, no. 8, p. 47, February 22, 1995). There was no consideration of heading 7020. To result in classification in heading 9701 of the suncatchers considered in those cases, the suncatchers must have been determined to be "executed entirely by hand" and no determination of whether the suncatchers were glassware or other articles of glass was necessary. Accordingly, these cases are not controlling of the issue of whether suncatchers not executed entirely by hand are classified in heading 7013 or 7020, HTSUS.
In regard to the statements of members of the trade provided by the protestant, it is well established that tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949)). "[I]n those instances where the common and commercial meanings differ, the party who argues that the term ‘should not be given its common or dictionary meaning must prove that there is a different commercial meaning in existence which is definite, uniform, and general throughout the trade’" (Winter-Wolff, Inc., v. United States, 996 F. Supp. 1258, 1261 (CIT 1998), citing Rohm & Haas Co. v. United States, 2 Fed. Cir. (T) 28, 29, 727 F.2d 1095, 1097 (1984)).
The common meaning of "glassware" is "articles made of glass" (Webster’s New World Dictionary, Third College Edition, at 573453 (1988); see also Los Angeles Tile Jobbers, supra, "all articles of glass are generally defined as ‘glassware’" (63 Cust. Ct. at 250; citing Webster’s Third new International Dictionary (1968))). In view of the common meaning of "glassware" and the inclusion in the exemplars of glassware included in heading 7013 of decorative glassware ejusdem generis with the suncatchers (see above), we conclude that the statements of gift shop operators submitted by the protestant do not meet the burden described above in Winter-Wolff. This is particularly true of the several such statements which appear to distinguish between decorative articles and articles which are utilitarian and also decorative (i.e., because EN 70.13 makes no such distinction).
The suncatchers are not paintings "executed entirely by hand" of heading 9701, HTSUS, and they are "glassware of a kind used for ... indoor decoration or similar purposes" as described in heading 7013, HTSUS. Because heading 7020, HTSUS, is a so-called "basket" provision, classification in that heading "is appropriate only when there is no tariff category that covers the merchandise more specifically" (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988)). Therefore, the suncatchers may not be classified in heading 7020. Except as stated below, they are classified as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not over $3 each, in subheading 7013.99.50, HTSUS.
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 18, 1996); affirmed in part, reversed in part 122 F.3d 1423 (Fed. Cir. (T) 1997). In this case, the Courts addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." The Courts applied their conclusions to specific articles to determine whether they were included within the scope of the class "festive articles." All of the articles ultimately ruled upon by the CAFC 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. Item # SO1884 incorporates a "Santa" symbol (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 illustrating the "three kings" bearing gifts, a frog in a red and white snow cap with snowflakes in the background, a praying female figure with green and red holly-like leaves, an angel-like figure, and a mouse-like creature bearing gifts, each with text related to the Christmas holidays, 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 or through stores that sell only Christmas-related items throughout the year. Based on this analysis, we conclude that these items are principally used as "festive articles."
Accordingly, item #’s MC1797, SC1983, SC1985, SO1884, SO1885, and SO1886, included in the February 3, 1997, entry, are classifiable as festive articles in subheading 9505.10.25, HTSUS. Insofar as the other protested entries are concerned, we have reviewed the suncatchers listed as "Holiday" suncatchers in the protestant’s January 1998 catalogue. On the same basis as above, we conclude that item #’s LC1182, LC1184, MC1796, MC1798, MO1382, SC1978, and SO0018 also may qualify as "festive articles" and are classifiable in subheading 9505.10.25, HTSUS ( item #’s LC1175 and LO1282, the suncatchers having a Nativity or manger scene, are classifiable in subheading 9505.10.30, HTSUS (see HQ 087894 dated December 4, 1990)). To the extent that the entry papers for the March 5 and 17, 1997, entries establish that the entries were of the items found to be "festive articles" in this ruling, classification may be in subheading 9505.10.25 or 9505.10.30, HTSUS, as appropriate. This is consistent with HQ 961465 dated September 22, 1998.
HOLDINGS:
(1) Except for suncatchers qualifying as "festive" articles (see (2) below), suncatchers painted entirely by hand with a textual message applied by a silk screen process are classifiable as other glassware of a kind used for indoor decoration or similar purposes, valued over $0.30 but not over $3 each, in subheading 7013.99.50, HTSUS.
(2) Suncatchers identified as item #’s MC1797, SC1983, SC1985, SO1884, SO1885, and SO1886 in the February 3, 1997, entry, are classifiable as festive articles, other Christmas ornaments, in subheading 9505.10.25, HTSUS; suncatchers with text on them identified as "Holiday" suncatchers in the protestant’s January 1998 catalogue (item #’s LC1182, LC1184, MC1796, MC1798, MO1382, SC1978, and SO0018) are also classifiable in subheading 9505.10.25, HTSUS; suncatchers having a Nativity or manger scene and with text on them identified as "Holiday" suncatchers in the protestant’s January 1998 catalogue ( item #’s LC1175 and LO1282) are classifiable as festive articles, nativity scenes and figures thereof, in subheading 9505.10.30, HTSUS.
The protest should be ALLOWED in part (as to the suncatchers which are classifiable as "festive articles" in subheading 9505.10.25 or 9505.10.30, HTSUS) and DENIED in part (as to the remaining suncatchers). 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 of the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings 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