CLA 2 RR:CR:GC 962647 JGB
Port Director
U.S. Customs Service
Port of Boston
10 Causeway Street
Boston, MA 22220
RE: Protest 0401 98 100125; Electric Christmas Candles, Candoliers and Lighted Tree Toppers; festive articles
Dear Director:
This is a decision on Protest 0401 98 100125 against your decision in the classification of various electric candles, candoliers, and tree toppers under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated from March 13 through June 5, 1998, and the protest timely filed on June 10, 1998.
FACTS:
The merchandise at issue in this protest is imported by Noma, International, and is marketed and sold during the Christmas selling season.
This decision covers three entries in the protest:: 336-2074488-9; 336-2075157-9 and 336-2503666-2. The protestant has abandoned its claims with respect to the remaining entries in the protest, identified as 336-2073036-7, 336-2073721-4 and 336-2074487-1. The items at issue here are described as follows:
Item #1001C is a 10 inch single electric candle consisting of an oval plastic base, a plastic tube, about ¾ inch in diameter, intended to simulate a candle body, and a socket on top for a “Christmas tree bulb” candelabra screw base C7 bulb. The electric bulb is powered by an electric cord threaded through the candle tube and extending through the base. The plug is used in normal household outlets.
Item #1503C is a 3 Light Candolier. This article is a variation of #1001C in that it has a plastic base about 9¼ inches wide that accommodates 3 simulated candles set side by side that have bulbs on top. They are powered by a single electrical cord.
Item #1505 is a 5 Light Candolier, designed on the same principle, with 5 simulated candles and a plastic base measuring about 14¼ inches in width. The lights are wired to burn independently of one another. The center light is the tallest in the 3 and 5 light models with the lateral lights graduating downward in height on either side.
Item #4951 is a 5 Point Star Tree Topper with 11 electric light bulbs at various points of the star. It is designed to be placed at the top of a Christmas tree.
Item #4956 is described as an 11 light Mini-wreath Tree Topper. It consists of 11 electric lights positioned on a star shape made of artificial evergreen material in 2 styles and around a circular “starburst” in two other styles. All are designed to be placed at the top of a Christmas tree.
You classified the articles in subheading 9405.40.80, HTSUS, the provision for “Lamps and lighting fittings...and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other,” dutiable at 3.9 percent ad valorem (1997).
The protestant claims classification for each of the articles 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,” free of duty.
ISSUE:
Whether the subject articles are classified within heading 9405 as electrical lamps and lighting fittings or within heading 9505, as festive articles.
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. 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.
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. Although the articles that are the subject of this protest are described by the headings in which the entries were liquidated, consideration must be given to relevant section and chapter notes.
Note 1(l) to Chapter 94, HTSUS, which covers heading 9405, provides that this chapter does not cover “decorations (other than electric garlands) such as Chinese lanterns (heading 9505)” of Chapter 95. Thus, if the subject electric candles, candoliers and tree toppers are classifiable under heading 9505, then note 1(l) to Chapter 94 precludes classification under heading 9405 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 published in the 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.
With respect to the electric candles and candoliers, both are principally decorative in that the bulbs in this configuration would not ordinarily give off enough light to illuminate a room. The electric candle alone is not an accepted symbol of a recognized holiday; therefore, this article is not automatically classified in heading 9505, unless convincing Carborundum evidence is also present. In the context of this case, it is clear that the electric candles and candoliers are used with other Christmas articles to decorate the home, and, in the words of the Midwest appeals court, “will be displayed and used by the consumer during” the particular holiday to which they relate. With respect to the note to Chapter 94, supra, lighting articles like Chinese lanterns that are principally decorative are not meant to be classified in Chapter 94. There is a substantial decorativeness to them that could exclude them from Chapter 94. This is not to say, however, that any article that gives light is excluded from Chapter 94 by virtue of being decorative. Almost all electric articles that provide some light and are classified in Chapter 94 would be to some degree decorative by design. But, subject to the relative section and chapter notes, in those instances where the function of giving light is merely incidental to the decorativeness of the article, the article will be precluded from classification in Chapter 94. In view of the Carborundum evidence presented, the electric candles and candoliers are classified in heading 9505. Such evidence is supplied here with the identification of the times of sale, the inclusion of the appropriate pages from the importer’s Christmas catalog, and the fact that the articles at issue are bought and sold as Christmas articles. They will likely be put away after the holiday and brought out again the next year. Although the candles and candoliers are illuminated with household electric current, the classification would not change with similar battery-operated models.
As to the tree toppers, these articles are even more closely associated with home decoration at the Christmas season than the candoliers. Standing alone without the electric lights, they would qualify by their sale and use as Christmas tree ornaments. The addition of the electric lights only enhances their decorativeness, but it does not turn them into lighting fixtures of Chapter 94. They are still classified in heading 9505, because they are not excluded by Note 1 (t) to Chapter 95 which excludes electric garlands of all kinds. These articles are not described as “electric garlands of all kinds” because they do not possess the draping characteristics associated with garlands. See New York Ruling Letter (NY) C81254, dated April 30, 1998, for a ruling on similar merchandise.
All the articles at issue in this protest are classified under heading 9505, HTSUS, specifically 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.”
We note that candles and candoliers are at present seen in the windows of houses on a year-round basis. This fact, alone, does not disqualify them for classification as festive articles of Chapter 95, HTSUS. We are satisfied from the evidence presented that the principal use of the articles is in connection with the Christmas holiday. If practice and usage in the United States changes to make this class of goods used principally outside the holiday period, this may result in a different classification. See Additional U.S. Note 1(a), HTSUS.
HOLDING:
The protest should be ALLOWED with respect to the entries for which the protestant has not abandoned his claim. The entries should be reliquidated according to the classification as indicated herein.
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 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