CLA-2 RR:CR:GC 961042 JRS
Port Director of Customs
Los Angeles-Long Beach Seaport
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-97-102283; “Halloween Tree" with Ornaments; Festive Article; Midwest of Cannon Falls, Inc.; HQ 961158, dated May 4, 1999
Dear Port Director:
This is our decision on Protest 2704-97-102283 timely filed against your decision in the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a "Halloween Tree" with ornaments. A sample was provided.
FACTS:
The article at issue, identified on the invoice dated June 15, 1995, as item #455714 "Halloween tree w/ 24-pc resin Halloween ornaments," was entered on July 7, 1995, and classified under subheading 6702.90.65, HTSUS, as articles made of artificial foliage of other materials. The entry was liquidated on April 4, 1997, based on Headquarters Ruling Letter (HQ) 957312, dated May 31, 1995. The protestant contends that it is a festive article classifiable under subheading 9505.90.60, HTSUS.
The article is an 12-inch leafless "tree" constructed from black metal wire. The black wire branches are straight while the coiled curlicue limbs are colored orange. The black tree trunk is permanently affixed to an intricately hand-painted resin base decorated in a motif of a run-down neglected graveyard. The tree has light-making (LED [light emitting diode] light) and noise-making (IC chip battery operated) features. The 24 hand-painted resin ornaments features witches, ghosts, jack-o-lanterns, skeletons and some other ghoulish creatures. All the ornaments have a loop of thread which permits suspension from the tree branches. The ornaments and the tree, made in China, are packaged in a box and sold together as one unit.
ISSUE:
Whether the "Halloween Tree" with ornaments is classifiable in heading 9505, HTSUS, as a festive article.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 (EN) 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 GRI.
The headings under consideration are as follows. Heading 9505, HTSUS, provides for, among other things, festive, carnival, or other entertainment articles. Heading 6702, HTSUS, provides for, among other things, artificial foliage. Note 1(e) to Chapter 67, HTSUS, states in part that "[t]his chapter does not cover: [t]oys, sports equipment and carnival articles (chapter 95); ..." If this particular "Halloween tree" is classified in heading 9505 as a "festive article," it is excluded from classification in heading 6702.
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 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind of merchandise termed “festive articles.” It then applied its conclusions to 27 of the 29 specific articles to determine whether they were included within the scope of the class of "festive articles."
There were no artificial foliage trees at issue in Midwest. The Midwest decision, however, provided new guidelines for classification of goods in the heading. In general, merchandise is classifiable as a festive article under Midwest 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. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998. The Midwest case and Customs recognizes Halloween as a festive occasion (holiday).
In addition to the three-prong 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) for purely decorative items to determine whether the imported merchandise is of the "class or kind" festive articles. See ICP, "Classification of Festive Articles," 32 Cust. Bull. 2/3 at page 177 ("IV. Additional Motifs, Symbols or Representations, A. Decorative Items"). 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.
An undecorated wire leafless tree, by itself, may not be considered a "festive article" unless the tree and its stand belong to the class or kind of articles used in decoration for a recognized festive holiday. This decision is made on a case-by-case analysis. See HQ 961158, dated May 4, 1999 ("Easter tree"). In HQ 957312, dated May 31, 1995, Customs held that an "Easter" tree, a plain wire tree embedded in a bamboo basket, was classified in heading 6702. Even after Midwest, we would reach the same conclusion in HQ 957312 because the tree does not fall within the "class or kind" of festive articles due to its lack of association with a particular holiday (i.e., 3rd prong of the Midwest test).
The subject protested wire tree and its base with the assortment of decorated ornaments have no precious or semiprecious stones, metals or metal clad with precious metal. The article functions primarily as a spooky and scary decoration used in celebration of Halloween. The resin ornaments are packaged with the wire tree. Each ornament has a hanging loop and is capable of being hung on the wire tree due to its small size and weight. The ornaments are marketed and sold with the tree as "Halloween" ornaments. Jack-o’-lanterns, ghosts, skeletons, black cats, and witches are representations of accepted symbols for the recognized holiday of Halloween. See ICP, "Classification of Festive Articles," at pages 176 and 177. Unlike plain artificial foliage trees of heading 6702 (e.g., HQ 957312), this particular household decoration has these recognized symbols of Halloween for its ornaments and on its base, which also possesses light and noise making features. These factors effectively limit the use of the article to the particular holiday of Halloween. They meet the three-prong Midwest standard. As such, they are described by heading 9505, HTSUS, and classifiable as festive articles.
An application of the Carborundum factors to the article supports the foregoing. In terms of general physical characteristics, the wire tree, containing some of the recognized Halloween symbols on its base, is a decorative item with a Halloween motif which is also reflected in its "Halloween" ornaments. The ultimate purchaser would have the expectation of using the "Halloween tree" for spooky decoration of the home during the Halloween. The light-making and noise-making characteristics on the base limits its use to the Halloween holiday so that the consumer would not normally use it after Halloween. The article is marketed, displayed and advertised for retail sale in a mail order catalogue, with other articles that are clearly unique to the Halloween holiday, during the Halloween selling season. The channels of trade, in addition to mail order catalogues of decorative items, include retail stores which typically sell decorative Halloween articles. We conclude that, by application of the Carborundum criteria, this particular "Halloween Tree" with its 24 ornaments is within the class of household decorations considered "festive articles" for tariff purposes under subheading 9505.90.60, HTSUS.
HOLDING:
Under GRI 1, this particular "Halloween Tree" with 24 ornaments is classifiable in subheading 9505.90.60, HTSUS, as other festive articles with a free rate of duty.
The protest should be ALLOWED. 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