CLA-2 RR:CR:GC 961101 JRS
Ms. Marilyn-Joy Cerny
Global Customs & Trade Specialists, Inc.
Milltown Office Park - Suite B-202
Route 22
Brewster, New York 10509
RE: Lighted Plastic Christmas Lawn Ornaments; Revocation of HQ 954252; Festive Articles
Dear Ms. Cerny:
This is in reference to your letter of November 10, 1997, on behalf of Fingerhut Corporation, requesting reconsideration of Headquarters Ruling Letter (HQ) 954252, issued to Fingerhut Corporation on November 15, 1993, in which Customs classified certain lighted plastic lawn ornaments under subheading 3926.40.00 of the Harmonized Tariff Schedule of the United States (HTSUS), as statuettes and other ornamental articles of plastic. We have reviewed this ruling and determined that the classification provided is not correct. A notice of proposed revocation of Headquarters Ruling Letter (HQ) 954252 was published in the Customs Bulletin on June 23, 1999, Vol. 33, No. 25. No comments were received.
FACTS:
HQ 954252, dated November 15, 1993, described the merchandise (your code #Q4883) as follows:
The article consists of five snowmen, four sets of reindeer and a Santa on a sleigh. It is two dimensional. It is made of high impact weather resistant styrene. Light bulbs and electric supply cords are supplied. Each ornament is designed with a triangular stake, which is pushed into the snow or ground. Light bulbs in sockets fit into an opening in the base of each ornament at the top of the stake and just below the pictorial representation. Once in place the light bulb are shielded by reflectors which snap into the stake over the bulb opening.
One ornament set consists of a Santa on a sleigh measuring 14½ inches high and four pairs of reindeer each measuring 16½ inches high. The five snowmen (holding candy canes) ornament set measures approximately 13 inches high. The commercial literature states that the lighted Santa and his reindeer and set of 5 snowmen are 10 feet long and are designed to be displayed on the lawn or mounted on a rooftop. Both items measure approximately 10 feet in length after each ornament is staked.
ISSUE:
Whether the lighted Santa and reindeer ornament and five snowmen ornament (#Q4883) is classifiable as plastic statuettes under heading 3926, HTSUS, or as a festive article under heading 9505, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI’s) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 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 . . . ." 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’s 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The headings under consideration are as follows:
3926 [o]ther articles of plastic and articles of other materials of headings 3901 to 3914
9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
Note 1(v) to Chapter 39, HTSUS, states that "[t]his Chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games and sports equipment)." Therefore, if the lighted lawn ornaments are classifiable as other Christmas ornaments under heading 9505, then they are excluded from classification in heading 3926 by operation of Note 1(v) to Chapter 39.
In HQ 954252, Customs held that the subject ornaments were not classifiable as festive articles in heading 9505 based on a narrow interpretation of the exemplars of traditional, festive articles cited in the Explanatory Notes to heading 9505, and the fact that "[w]hile the subject article is decorative and its pictorial representations may be generally associated with the winter season of the year, we note that they are not specifically festival related."
Also, HQ 954252 equated the subject lawn ornaments to an electric garland. For an item to be a garland, it must be able to be hung or draped on a tree, a wall, a banister, etc. The subject articles are not like garlands due to their size and structure; they are not capable of being either hung or draped, but rather staked into the ground or mounted onto the roof for display.
Furthermore, since HQ 954252 was issued, the court has ruled on the meaning of festive articles. In Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997)(hereinafter Midwest), the Court of Appeals addressed the scope of heading 9505; 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, 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 the celebration of, and 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 "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 Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 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 ICP, 32 Customs Bulletin 2/3 at p. 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), 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.
In considering the Midwest criteria, the reindeer pulling Santa in his sleigh ornament is not made predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The ornament functions primarily as an outdoor decoration used in the celebration of Christmas, a recognized holiday. Santa Claus is an accepted symbol for the Christmas holiday. Santa was specifically recognized in Midwest as 16 of the 29 litigated articles were Santa figures. See also ICP, 32 Customs Bulletin 2/3 at p. 176 ("III. Expanded Interpretation of 9505 Motifs, Symbols or Representations, A. Decorative Items, ‘In 9505.10, Santa Claus’"). Santa’s reindeer are another symbol that raises the possibility of a "festive" classification. See Id. at p. 177 ("IV. Additional Motifs, Symbols or Representations, A. Decorative Items, ‘In 9505.10, Reindeer’"). Here, the reindeer directly pulling Santa’s sleigh suggest that they are Santa’s reindeer. This outdoor decoration is within the class of other decorative Christmas ornaments that are bought, sold and used during the Christmas season. The Midwest Court found that the term "ornament" should not be confined to objects that hang on a Christmas tree. Therefore, the Santa in the sleigh with his reindeer ornament which decorates a lawn or rooftop qualifies as a festive article of heading 9505, specifically subheading 9505.10.25, HTSUS.
The second item of #Q4883 is the five snowmen lawn ornament. The snowmen are identical: each is holding a candy cane and has a black top hat, green mittens, a green and red scarf, and a smile. Generally speaking, a snowman is a recognized symbol of the winter season. At issue here is whether these snowmen representations taken, as a whole, correspond to an article used in celebration of a particular holiday.
Does this snowmen ornament fall within the class or kind of ornament, namely, the Santa and his reindeer ornament, discussed above, which is principally, if not exclusively, used only during the holiday season for the specific purpose of decorating or ornamenting the home or Christmas tree? In Headquarters Ruling Letter (HQ) 961839, dated March 9, 1999, Customs found that the ordinary snowmen in the "Snowman Family Screen" were so embellished that the article had become part of the class of festive articles when the Carborundum factors were applied. In contrast, in HQ 961519, dated February 24, 1999, a "Scarecrow Snowman Lawn Ornament" was found not to belong to the class or kind of "festive articles" and was classified in subheading 6307.90.99, HTSUS. See also HQ 961511, dated February 24, 1999.
With respect to the general criteria of Carborundum, we note that in terms of the general physical characteristics, the snowmen ornament has no functional aspects and is exclusively decorative. The candy canes and color scheme of the snowmen are consistent with a Christmas theme. The ultimate purchaser would have the expectation of using the article to decorate the outside of their home during the day and night hours of the holiday season. The channels of trade for this type of merchandise would be in stores selling decorative seasonal Christmas articles for the home; however, these stores would also typically sell a variety of other home decorative articles. The environment of the sale appears to be part of a Christmas or holiday sales promotional effort since this particular item is advertised in the 5-page section of the importer’s direct marketing catalogue (104 pages) that contains seasonal articles used in and for the home for the Christmas holiday; however, we note that the catalog displays for sale a wide-range of other products from footwear to electronics. The lawn ornaments are grouped in the catalog with other seasonal Christmas-related items such as hand-painted wooden Christmas ornaments, a musical Santa and Christmas tree cookie jar, a talking Santa candy dish and a 10-pc. outdoor lighted nativity scene. The recognition in the trade would apparently be as a Christmas article, in that the catalog pages provided in HQ 954252 are under the titles "Make all your holiday entertaining festive!" and "Corner Shop, Your source for unique gifts and holiday accents."
The Carborundum factors taken together leads to the conclusion that the article is within the class of festive articles. The lighted snowmen ornament, sold together with the Santa and his reindeer ornament, is within the same class of merchandise principally, if not exclusively, used to decorate the home during the Christmas holiday. As noted in HQ 961839, not all snowmen are automatically festive and the mere appearance of an article in a Christmas catalog is not sufficient to bring that article into the class of festive articles, although such an appearance is useful evidence toward that end.
HOLDING:
The lighted Santa and his reindeer ornament and five snowmen ornament (#Q4883) is classified as a festive article under heading 9505, specifically under subheading 9505.10.25, HTSUS, the provision for "[f]estive, carnival or other entertainment articles...parts and accessories thereof; [a]rticles for Christmas festivities and part and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther."
EFFECT ON OTHER RULINGS:
HQ 954252 dated November 15, 1993, is REVOKED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division