CLA-2 RR:CR:GC 963198 TF
Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202
RE: Protest 1303-99-100195; Light lawn ornaments; Heading 9505; Primal Lite, Inc. v. United States; Midwest of Cannon Falls v. United States
Dear Port Director:
The following is our decision regarding Protest 1303-99-100195 filed against your classification decision, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain lighted lawn ornaments and curtain light sets. The entry under protest was liquidated on June 25, 1999, and this protest was timely filed on July 29, 1999.
FACTS:
The specific articles under protest consist of fifteen styles of lighted lawn ornaments comprised of wire frames which are covered by plastic tubes of lights. These articles are supported by an attached stand which is staked into the ground or mounted onto a house roof for display.
The sample photos depict various light sculptures in styles of doe, buck, Santa Claus, snowman, sleigh, angel and North Pole. The samples submitted for consideration are as follows:
1. Lighted standing doe: item #49-424-N, approximately 30 inches in height, and item #48-447-N, approximately 48 inches in height.
2. Lighted standing bucks: consisting of item #49-425-N, approximately 30 inches in height and item #48-449-N, approximately 48 inches in height.
3. Lighted feeding doe: consisting of item #48-426-N, approximately 48 inches in height and item #48-427-N, approximately 28 inches in height.
4. Lighted standing buck with a turned head, item #49-748-N, approximately 48 inches in height.
5. Lighted jumping bucks: consisting of item #49-434-N, approximately 30 inches in height, and item #48-448-N, approximately 48 inches in height.
6. Lighted snowman, item #49-550-N, approximately 48 inches in height.
7. Santa Claus, item #49-554-N, approximately 48 inches in height.
8. Lighted angel, item #49-555-N, approximately 48 inches in height.
9. Lighted white sleighs: consisting of item numbers #48-652-N, approximately 42 inches in height, and item#48-654-N, approximately 54 inches in height.
10. Lighted North Pole, item # 49-642-N, approximately 72 inches.
Protestant entered the merchandise on August 12, 1998, under subheading 9505.10.25, HTSUS, which provides for “other articles for Christmas festivities and parts and accessories thereof”. The entry was liquidated under subheading 9405.40.80, which provides for other electric lamps and lighted fittings.
Protestant claims that the articles are classifiable in subheading 9505.10.25, HTSUS. Protestant asserts that the entry classification is inconsistent with Customs rulings, namely HQ 961101, dated July 28, 1999, which held a lighted Santa and his reindeer ornament and five snowmen ornaments classifiable as festive articles in subheading 9505.10.25, HTSUS, along with the decision of Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest).
Protestant argues that the subject ornaments are not garlands due to their size and structure and they are incapable of being hung or draped.
ISSUE:
Whether the lawn ornaments are classifiable in heading 9505, HTSUS, which provides for festive articles, or as other electric lamps and lighting fittings of base metal under heading 9405, HTSUS, as liquidated.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that 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, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS.
The HTSUS headings under consideration are as follows:
9405 [o]ther electric lamps and lighting fittings:
9405.40.80 Other
* * * *
9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
9505.10.25 Other Christmas ornaments
* * * *
Festive, carnival or other entertainment articles are provided for in heading 9505, HTSUS. In the instant case, the lighted sculptures, also known as lawn ornaments, are generally used for decorating or adorning the outside of a residence for the Christmas holidays. Although each ornament incorporates a string of electric lights around its frame, they are not electrical garlands because they are attached to a wire frame and are not capable of being draped or hung, but rather are staked into the ground or mounted onto the roof for display. The presence of lights does not preclude the lighted sculptures from classification under heading 9505, HTSUS. See HQ 962965, dated November 9, 1999 (classifying four electric light sculptures consisting of a decorative plastic frame, illuminated with electrical wiring affixed to the frame in subheading 9505.10.25, HTSUS.) Customs no longer considers lighted sculptures to be similar to electric garlands because they are not short lengths of lighting that are capable of hanging on trees. The Christmas ornaments at issue may be classified in heading 9505 if they are found to meet the "class or kind" criteria for festive articles as provided for in Midwest.
The Court in Midwest, 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. It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class of "festive articles". 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. 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 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 Midwest, articles which contained motifs of Santa were specifically recognized as festive within subheading 9505.10.25, HTSUS. Therefore, of the instant articles, we accept the Santa Claus light ornament within the Midwest criteria.
Nine of the fifteen styles of articles in this protest are doe and buck ornaments that are displayed in various poses of standing, feeding and jumping. Merriam-Webster’s Collegiate Dictionary, 10th Edition, defines the term “doe” as “the adult female of various mammals (as a deer, rabbit or kangaroo) of which the male is called buck.” Id. at 342. The noun version of the term ‘buck’ is defined as “a male animal; esp.: a male deer or antelope.” Id. at 148. In this protest, we will accept the doe and buck ornaments as the functional equivalent of reindeer.
Since the remaining articles (reindeer, angel, North Pole, sleigh and snowman) are other motifs, we must examine whether they are within the meaning of Christmas ornaments, that is, for a particular holiday within the Midwest criteria. We turn to the Carborundum factors, as the court in Midwest did, to determine whether these items are within the class or kind of Christmas ornaments, which is principally used during the holiday season for the specific purpose of decorating or ornamenting the home or Christmas tree.
With respect to the general criteria of Carborundum applied to this case, we note that in terms of the general physical characteristics, the subject ornaments have no functional aspects and are exclusively decorative. 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 these items are advertised and grouped in the photo with other seasonal Christmas-related items such as the Santa Claus ornament. The recognition in the trade apparently would be as Christmas articles.
We find the instant reindeer, snowman, angel, sleigh and North Pole sculptures to be of a class or kind of other Christmas ornaments which are bought to decorate the home or surroundings during the Christmas season. All of the instant articles appear to be within the class of other decorative Christmas ornaments that are bought, sold and used during the Christmas season.
However, with respect to the grouping context of the instant articles, we noted in HQ 961839, dated March 9, 1999, the following about snowman plaques:
"not all [all reindeer, snowman, angels, sleighs and North Pole ornaments] are automatically festive, nor will the presence of..other Christmas-related images automatically qualify the article[s] for classification as a festive article. This is so because the images may appear with articles that are inconsistent with festive use. Likewise, the mere appearance of article[s] in a Christmas catalog is not sufficient to bring the article into the class of festive articles; however, such an appearance is useful evidence toward the end.
This same standard and observation in HQ 961839 applies equally to the instant reindeer, snowman, angel, sleigh and North Pole sculptures. The Carborundum factors taken together lead to the conclusion that these sculptures are within the same class of merchandise principally, if not exclusively, used to decorate the home during the Christmas holiday. The instant ornaments which decorate a lawn, therefore, qualify as festive articles of heading 9505, specifically subheading 9505.10.25, HTSUS.
HOLDING:
The light sculptures are classifiable as festive articles in subheading 9505.10.25, HTSUS, which provides 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."
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 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