CLA-2 RR:CR:GC 960231 RC
Port Director of Customs
P.O. Box 619050
Dallas/Fort Worth Airport, Texas 75261-0950
RE: Protest 5501-96-100348, unfinished plaster-craft Christmas
ornaments and mini village buildings
Dear Port Director:
This is our decision on Protest 5501-96-100348, concerning
your action in classifying and assessing duty on unfinished
plaster-craft Christmas ornaments and mini village buildings,
under the Harmonized Tariff Schedule of the United States
(HTSUS). The entry was liquidated on August 23, 1996. The
protest was timely filed on November 20, 1996.
FACTS:
The items consist of unfinished plaster-craft Christmas
ornaments (sequence 4000 and 70000) and traditional mini village
buildings (sequence 90000). The ornaments depict representations
of Santa Claus, angels, a snowman, a toy soldier, etc., and
feature a hole in the back for hanging them. All of the items
will be sold in craft stores. Photocopies of catalog depictions
were submitted to show how the articles may look when finished,
that is, painted. The 90000 sequence mini village buildings
measure from 5-1/2 to 9-1/2 inches in height and from 5 to 5-1/2
inches in width. They consist of houses, churches, schools, and
stores. The protestant claims that all the articles are imported
only during the Christmas season, for sale and use only then, as
a basis for classifying the articles as festive, in heading 9505,
HTSUS. You classified all of the merchandise as other articles
of plaster in heading 6809, HTSUS.
ISSUE:
Whether the unfinished plaster-craft Christmas ornaments and
mini village buildings are classifiable in heading 6809, HTSUS,
as other articles of plaster or in heading 9505, HTSUS, as
festive articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic detail
of the Harmonized System is such that virtually all 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 Harmonized Commodity Description and Coding
System Explanatory Notes (ENs), 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. See, T.D.
89-80, 54 Fed.Reg. 35127
(August 23, 1989).
GRI 2(a) states in pertinent part that:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of this
rule), entered unassembled or disassembled.
Heading 9505, HTSUS, provides for, among other items,
festive, carnival, and other entertainment articles. The ENs to
9505 indicate that the heading covers:
(A) Festive, carnival or other entertainment articles,
which in view of their intended use are generally made
of nondurable material. They include:
(1) Decorations such as festoons, garlands,
Chinese lanterns, etc., as well as various
decorative articles made of paper, metal foil,
glass fibre, etc., for Christmas trees (e.g.,
tinsel, stars, icicles), artificial snow, coloured
balls, bells, lanterns, etc. Cake and other
decorations (e.g., animals, flags) which are
traditionally associated with a particular
festival are also classified here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs . . .
In Midwest of Cannon Falls, Inc. v. United States, Court No.
92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade,
January 18, 1996) and Court No. 96-1271, 96-1279, 1997 U.S. App.
LEXIS 21617 (Fed. Cir. August 14, 1997), the court addressed the
broad issues of what constitutes an "ornament" and whether or not
articles are classifiable as "festive." In essence, we believe
that the court applied 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, because the court in Midwest
considered the marketing, advertising, methods of display,
limitation with respect to selling season, etc. deferentially.
In Carborundum, the court provided factors, which are
indicative but not conclusive, to apply when determining whether
merchandise falls within a particular class or kind. Those
factors include: general physical characteristics, 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. Also see,
Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992);
G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614
(September 6, 1990).
Even prior to the recent Midwest decision, Customs would
have classified finished Christmas ornaments designed to hang
from a Christmas tree as festive articles in heading 9505, HTSUS.
See, HQ's 957145 (February 28, 1995), 089359 (August 1, 1991),
087293 (August 30, 1990), 083330 (April 10, 1990), 083180
(February 28, 1990). Additionally, Customs has generally
classified finished mini-village building collections as festive
articles in heading 9505, HTSUS. See, HQ's 958240 and 958259
(March 25, 1996), 958409 (April 19, 1996), 958410 and 958412
(April 23, 1996), 958556 (April 29, 1996), 958747 (September 20,
1996), 957706
(June 21, 1995), 958245 (October 24, 1995).
Here, the issue is whether the unfinished articles present
characteristics sufficient to classify them as finished articles,
by application of GRI 2(a). In that regard, we find that the
general physical characteristics of the articles are sufficient
to classify them as finished articles. The tree ornaments and
mini-village buildings are sculpted three-dimensional articles
similar to those Customs has ruled upon, but for the fact that
they have not been painted. The expectation of the ultimate
purchaser is to use the articles either as imported or as
painted. As the protestant claims, one may choose to use them
without painting them. Moreover, craft stores are typical
channels of trade for festive articles. In sum, the nature of
the articles and the environment of sale (accompanying
accessories, manner of advertisement and display) are such that
we are satisfied that these items are for use to celebrate
Christmas.
Based on the information before us, it is our determination
that the unfinished plaster-craft Christmas ornaments (sequence
4000 and 70000) and traditional mini village buildings (sequence
90000) meet the criteria for classification as festive articles.
They are classifiable in heading 9505, in the same manner as
finished articles, by application of GRI 2(a). The plaster-craft
Christmas ornaments (sequence 4000 and 70000) fall into
subheading 9505.10.2500, HTSUS, and the traditional mini village
buildings (sequence 90000) fall into subheading 9505.10.5020,
HTSUS.
HOLDING:
The plaster-craft Christmas ornaments (sequence 4000 and
70000) are classifiable in subheading 9505.10.2500, HTSUS; the
traditional mini village buildings (sequence 90000) are
classifiable in subheading 9505.10.5020, HTSUS, both being free
of duty (1996).
You are instructed to allow the protest in full. A copy of
this decision should be attached to the Customs Form 19 and
provided to the protestant as part of the notice of action on the
protest.
In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision, together with the Customs Form 19, should be mailed 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 Ruling 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