Protest 280998100146; Christmas Stocking Hangers; Santa Claus and Snowman Candleholders; Santa Shape and Turkey Shape holiday candles; festive articles

HQ 962156 July 15, 1999 CLA2 RR:CR:GC 962156 JGB CATEGORY: Classification TARIFF NO.: 9505.10.2500; 9505.10.5020; 9505.90.6000 Port Director U.S. Customs Service Port of San Francisco P.O. Box 2450 San Francisco, CA 94126 RE: Protest 280998100146; Christmas Stocking Hangers; Santa Claus and Snowman Candleholders; Santa Shape and Turkey Shape holiday candles; festive articles Dear Director: This is a decision on Protest 280998100146 against your decision in the classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated on April 3, 1998, and the protest timely filed on April 24, 1998. Our decision follows: FACTS: The merchandise at issue in this protest, manufactured in China, is imported by Russ Berrie and Company, Inc., and is marketed to and sold through the importer’s distributors for ultimate sale in small to mid-sized retail shops during the Christmas selling season or, in the case of the turkey-shaped novelty candle, in connection with the Thanksgiving selling season. The protest covers three groups of merchandise: ScultpStone? Christmas stocking hangers, ScultpStone? Santa Claus/Snowman candleholders, and novelty Santa-shaped and Turkey-shaped candles. The stocking hangers are approximately 5¼ inches high and depict in one case a polar bear standing on a snow covered landscape with two evergreen trees, one tree decorated as a Christmas tree. The other includes a moose standing on a red carpet with holly sprigs and snowflake decorations. The blankets the figures are standing on are curled downward, providing a “hook” on which would be hung the Christmas stocking. You classified these articles in subheading 6810.99.00, HTSUS, the provision for “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other” dutiable at 2 percent ad valorem (1997). The second group, also of ScultpStone?, are carved candleholders 11½ inches in height. One represents Santa Claus holding a small Christmas tree. The second represents a snowman carved into a tree, wearing a scarf and holding a broom. Above the head of the figures is the cup for holding the candle. You classified these articles in subheading 9405.50.40, HTSUS, the provision for “Lamps and lighting fittings...and parts thereof not elsewhere specified or included: Non-electrical lamps and lighting fittings: Other: Other,” dutiable at 6.6 percent ad valorem (1997). The third group consists of two novelty candles, one in a three-dimensional Santa shape, 10 inches in height, and the other, in the three-dimensional shape of a turkey, measuring 5½ inches by 6½ inches. These articles are made of carved wood-textured wax. You classified them in subheading 3406.00.00, HTSUS, the provision for “Candles, tapers and the like,” dutiable at 2.6 percent ad valorem (1997). The protestant claims classification for each of the Christmas-related 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. The Turkey Shape candle is claimed to be classified in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other,” free of duty. ISSUE: Whether the Christmas Stocking Hangers are classified within heading 6818, as articles of artificial stone; whether the Santa Claus and Snowman Candleholders are classified within heading 9405 as non-electrical lamps and lighting fittings; and whether the Santa Shape and Turkey Shape holiday candles are classified within heading 3406, as candles, tapers and the like; or whether any or all of the protested articles are classified 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. Articles for festivities other than Christmas are classified in subheading 9505.90. Although the articles that are the subject of this protest are described by the respective headings in which the entries were liquidated, consideration must be given to relevant section and chapter notes. Customs has classified Christmas stockings in Chapter 95 since the United States adopted the HTSUS. Headquarters Ruling Letters (HQs) pertaining to Christmas stockings were issued June 14, 1989 (HQ 084719); October 2, 1992 (HQs 951347 and 951348); and October 30, 1992 (HQs 951350 and 951353) based on the guidance provided in the ENs to Chapter 95 that included Christmas stockings among the exemplars of “articles traditionally used at Christmas festivities.” Also, an angel Christmas Stocking hanger was also ruled as a festive article in heading 9505, HTSUS, in HQ 951461, issued March 22, 1993. We note that an article principally designed to hold Christmas stockings, as the stocking hangers under consideration here are so designed, functions as an accessory to the Christmas stocking. The hanger provides a more decorative means of allowing the Christmas stocking to be hung in celebration of the recognized holiday. Without the Christmas stocking itself, there would be little point of having a Christmas stocking hanger. Note 3 to Chapter 95 provides that ”parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” Therefore, as an accessory to Christmas stockings, the Christmas stocking hangers are classified with Christmas stockings as indicated infra. 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 Santa Claus and Snowman candleholders 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 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 candleholders, both are utilitarian or functional articles. The three-dimensional Santa figure is an accepted symbol of a recognized holiday; therefore, this article is classified in heading 9505. The snowman figure, also three-dimensional, is not automatically eligible for heading 9505, unless convincing Carborundum evidence is also present. In the context of this case, it is clear that the snowman is used with other Christmas articles, if not paired with the Santa Claus candleholder, 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 chapter note to Chapter 94, supra, lighting articles like Chinese lanterns that are principally decorative are not meant to be classified in Chapter 94. While the candleholders actually function to hold candles, the effect of the candleholders would not be lost if the candles were not burning. There is a substantial decorativeness to them that could exclude them from Chapter 94. This is not to say, however, that any decorative candleholder is excluded from Chapter 94 by virtue of being decorative. Almost all candleholders classified in Chapter 94 would be to some degree decorative by design. But in those instances where the fact of holding a candle 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 and the fact that the figure on the candleholder is a three-dimensional figure associated with an accepted festive holiday, the snowman candleholder will be classified in heading 9505. With respect to the wax Santa Claus Candle and the wax Turkey Candle, the subject of a Santa Claus Candle was treated in HQ 961873, January 29, 1999, in which it was determined that the three-dimensional representation of the Santa Claus figure was an accepted symbol used with a recognized festive holiday, namely, Christmas. While the cited ruling did not include turkeys, the Customs Bulletin, supra, identifies the turkey symbol as raising the possibility of classification in heading 9505, when the claim is coupled with appropriate Carborundum evidence. Such evidence is supplied here with the identification of the times of sale, the inclusion of the appropriate pages from the importer’s Thanksgiving seasonal catalog, and the coupling of the turkey candles with other Thanksgiving-related household articles. The Santa Claus candle is accordingly 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.” The turkey candle is classified under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other.” The stocking hangers are classified with Christmas stockings 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.” The Santa Claus and Snowman Candleholders are classified in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other.” HOLDING: The protest should be ALLOWED. The entries should be reliquidated according to the classification as indicated herein. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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