Protest 3001-98-100381; Festive articles; Picture Frames with Christmas Motifs

HQ 962410 July 15, 1999 CLA2 RR:CR:GC 962410 AML CATEGORY: Classification TARIFF NO.: 9505.10.40 Port Director of Customs 1000 2nd Avenue Seattle, Washington 98104-1049 RE: Protest 3001-98-100381; Festive articles; Picture Frames with Christmas Motifs Dear Port Director: The following is our decision regarding protest 3001-98-100381, concerning your classification of picture frames with Christmas motifs pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided for our examination. FACTS: The subject articles are very decorative picture frames with Christmas motifs. The motifs are in high bas-relief; virtually three dimensional. One frame depicts a fireplace adorned with the decorations readily associated with Christmas: a decorated Christmas tree with presents beneath it; garland on the mantle; and present-filled stockings hanging from the mantle. The second depicts Santa Claus holding his list in one hand and holding a stocking filled with presents in the other. The remainder of the frame depicts a decorated Christmas tree and Santa’s sack, overflowing with children’s toys and wrapped presents. Both frames are manufactured from what appears to be a poly-resin material, and are designed to accommodate a 5" by 7" photograph. The protestant asserts that the weight and value of the constituent materials of the frames are as follows: polyresin - 60% of the weight and 55% of the value; glass - 20% of the weight and 10% of the value; plastic backing - 10% of the weight and 20% of the value; face paper - 1% of the weight and 1% of the value; and packaging - 9% of the weight and 14% of the value. The articles were entered on August 25 and 26, 1997, and were liquidated on July 10, 1998, with classification in subheading 3924.90.20, HTSUS, as other household articles of plastic, picture frames. This protest was filed on September 4, 1998. ISSUE: Whether the picture frames are classified in subheading 3924.90.20, HTSUS, as other household articles of plastic, picture frames; or in subheading 9505.10.40, HTSUS, as other articles for Christmas festivities and parts and accessoies thereof, of plastics? LAW AND ANALYSIS: Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 1514 U.S.C. 1514 (a)(2) and (5)). 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 GRIs 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 HTSUS headings under consideration are as follows: 3924 Tableware, kitchenware, other household articles and toilet articles, of plastics: 3924.90 Other: 3924.90.20 Picture frames. * * * * * * * * * * * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.10 Articles for Christmas festivities and parts and accessories thereof: Other: 9505.10.40 Of plastics. 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. It is our position that the articles qualify as three dimensional because they are not designed or effective primarily as a flat or surface composition, but rather are specifically designed to give an illusion of depth or varying distances. See Webster's Third New International Dictionary 2474 (1971). Although the frames can be placed on a table, counter, etc., because they are physical manifestations of the form of Santa Claus and other readily recognizable symbols of Christmas, they are sufficiently three dimensional to warrant classification within heading 9505. The picture frames are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The picture frames are functional, three-dimensional representations of articles readily associated with Christmas: a decorated Christmas tree with presents beneath it; garland on the mantle; and present filled stockings hanging from the mantle; and of course, Santa Claus. These articles are elaborately and overwhelmingly dedicated to the Christmas season. Because of their unique appearance and significant detail, they would likely be used as decoration only during the Christmas season. Wreaths, Christmas trees and Santa Claus are accepted symbol for the recognized holiday - Christmas. Therefore, the picture frames qualify as festive articles of heading 9505. It should be noted that the determination made in this ruling constitutes the exception to the general rule that picture frames, whether or not having a festive motif, because of their utility and capability for year round use, will not be classified in heading 9505, HTSUS, as festive articles. The two festive picture frames classified by this ruling are unique in that they are highly detailed and elaborately decorated with the Christmas motif. The molded images are highly detailed and are undeniably three dimensional; several protrude 1 1/2 to 2 1/2 inches from the flat back of the frames. This ruling is limited to these special frames. The general rules and guidelines enumerated in November, 1997, by the Customs Informed Compliance Publication entitled “Classification of Festive Articles as a result of the Midwest of Cannon Falls Court Case” remain in full force and effect. HOLDING: The three dimensional picture frames with Christmas motifs are classifiable under subheading 9505.10.40, HTSUS, as other articles for Christmas festivities and parts and accessoies thereof, of plastics. The protest should be GRANTED. 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