Santa Claus and Snowman Bottle Openers; HQ 961511, 961519, 961839.

HQ 962252 July 23, 1999 CLA-2 RR:CR:GC 962252ptl CATEGORY: Classification TARIFF NO.: 9505.10.5020 Mr. Joel K. Simon Serko & Simon One World Trade Center Suite 3371 New York, NY 10048 RE: Santa Claus and Snowman Bottle Openers; HQ 961511, 961519, 961839. Dear Mr. Simon: This is in response to your letter of September 4, 1998, to the Customs National Commodity Specialist Division in New York, on behalf of Russ Berrie and Company, Inc. (“Russ Berrie”), requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of cast iron bottle openers, item # 10189. Your letter was forwarded to this office for reply. We regret the delay in responding. FACTS: The two articles under consideration are one-piece cast iron bottle openers. Each is approximately 6" long, and weighs approximately 9.5 oz. The handle of one is in the shape of a Santa Claus figure, and the other is in the shape of a snowman. The bottom end of each of the articles has been formed into a loop bottle opener. The white-bearded Santa Claus is painted in the traditional style with white trim on a red coat and star-topped hat. The white snowman figure is decorated with a red scarf and hat, green gloves and hat trim, black coat buttons and an orange nose. The two different figures share the same vendor item number (# 10189). You state that these articles are to be sold and distributed to small and mid-sized retailers specializing in gift and novelty items for Christmas and other holidays. These particular articles will be displayed and sold in the importer’s Christmas catalog. Samples of the articles and the catalog have been provided for examination. ISSUE: Whether metal bottle openers in the shape of a Santa Claus and a snowman are classified as hand tools in heading 8205, HTSUS, or as festive articles in heading 9505, HTSUS. 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). The systematic detail of the HTSUS 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 in order. The HTSUS headings under consideration are as follows: 8205 Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar selfcontained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand or pedal operated grinding wheels with frameworks; base metal parts thereof: * * * 8205.59. Other: * * * Other: Other: Of iron or steel: * * * 8205.59.55 Other. * * * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.10.0000 Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: 9505.10.5000 Other. * * * 9505.10.5020 Other.. Although the bottle openers are described by both heading 8205 and 9505, HTSUS, consideration must be given to relevant section and chapter notes. Note 1(l) to Section XV (which includes chapter 82) states that “This section does not cover ... [a]rticles of chapter 95 (for example, toys, games, sports equipment)”. Thus, if the Santa Claus and snowman bottle openers are classifiable under heading 9505, then Note 1(l) to Section XV precludes classification under heading 8205 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 representative of an accepted symbol of 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,” 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, 4229 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. Because both the Santa Claus and snowman bottle openers are functional/utiitarian articles and are not merely decorative, we must apply the criteria in both Midwest and Carborundum. In considering the Midwest criteria, the bottle openers are not made predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Both articles are functional items which have incorporated into them three dimensional representations of figures of Santa Claus and a snowman. Santa Claus is an accepted symbol for the Christmas holiday. See 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’"). The snowman is generaly recognized as a symbol for the winter season, not necessarily the Christmas holiday. At issue here is whether the additional red and green hat, red scarf and green mitten decorations so embellish the article that it has become part of the class of festive articles. Also, at issue here is whether the decorations on an article are so identified with a particular holiday that they minimize the article’s functionality and usefulness and limit its appropriate use to that holiday. 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, because it did not meet the Carborundum factors. See also HQ 961511, dated February 24, 1999. With respect to the general criteria set forth in Carborundum, we note that in terms of general physical characteristics, both the Santa Claus and the snowman bottle openers do have functional aspects in addition to their potential use as holiday decorations. We also note that the color schemes of the clothing on both styles of the openers is consistent with a Christmas theme. It is reasonable to expect that the ultimate purchaser would have the expectation of using either article to decorate the beverage serving area of their home during the holiday season. According to information you have supplied, the channels of trade for this type of merchandise would be in stores selling decorative seasonal Christmas articles for the home during the Christmas holiday period along with other Christmas decorations. The recognition in the trade would apparently be as a Christmas article, in that the articles appear in “The Christmas Sampler” portion of the “nineteen 98 Christmas" Russ Berrie catalog provided. Additionally, although the articles are utilitarian, because of the particular motifs which appear on the articles, it can be reasonably anticipated that their practical use by most purchasers would be limited to the holiday season which those motifs represent. The Carborundum factors taken together lead to the conclusion that the articles are within the class of festive articles. The snowman and the Santa Claus bottle openers, are within the same class of merchandise principally, if not exclusively, used to decorate the home during the Christmas holiday. However, because of the utilitarian nature of the articles, they do not fall within the category of Christmas ornaments, but rather are classified as articles for Christmas festivities, other. As noted in HQ 961839, not all snowmen are automatically festive and the presence of holly or a hat and scarf, or other Christmas-related images do not automatically qualify the article for classification as a festive article. This is so because the images may appear with articles that are inconsistant with festive use. Likewise, the mere appearance of an article in a Christmas catalog is not sufficient to bring that article into the class of festive articles; however, such an appearance is useful evidence toward that end. HOLDING: The metal bottle openers with handles shaped in the likenesses of Santa Claus and a snowman are classified as festive articles under heading 9505, HTSUS, specifically in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof; Articles for Christmas festivities and part and accessories thereof: Other: Other: Other." Sincerely, John Durant, Director Commercial Rulings Division