Application for Further Review of Protest Number 3001-2008-100098; classification of gift box light sculptures

HQ H033705 July 31, 2009 CLA-2 OT:RR:CTF:TCM  H033705 CkG Category: Classification Tariff No.: 9505.10.25 Port Director Customs and Border Protection 1000 Second Ave., Suite 2100Seattle, WA 98104 Re: Application for Further Review of Protest Number 3001-2008-100098; classification of gift box light sculptures Dear Port Director, This is in response to the Application for Further Review of Protest Number 3001-2008-100098, filed on behalf of the importer, Target Stores (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of two gift box light sculptures, under subheading 9405.40.80 of the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The protest describes a single entry of a pack of two lighted three-dimensional gift box sculptures, item number 051041869, on October 15, 2006. The sculptures are three-dimensional representations of wrapped Christmas presents, with green and red “rope” lighting attached to a metal frame, including a “bow” on top of the “box” portion of the frame. On August 31, 2007, the Port of Seattle liquidated the entry in subheading 9405.40.80, HTSUS, which provides for “Lamps and lighting fittings including searchlights and spotlights and part thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and light fittings: Other.” Protestant claims classification as a festive article, under Heading 9505, HTSUS. ISSUE: Whether the subject article is classified as an electric lamp or fitting, under heading 9405, HTSUS, or as a festive article, under heading 9505, HTSUS. LAW AND ANALYSIS: The matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 3001-2008-100098 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a prior ruling with respect to substantially similar merchandise. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The HTSUS provisions under consideration in this case are as follows: 9405: Lamps and lighting fittings including searchlights and spotlights and part thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: 9405.40 Other electric lamps and lighting fittings: Of base metal: 9405.40.60 Other….. 9405.40.80 Other….. * * * * * 9505 Festive, carnival or other entertainment articles, including magic tricks and other practical joke articles; parts and accessories thereof: 9505.10 Articles for Christmas festivities and parts and accessories thereof: Christmas Ornaments: Other: Other…. * * * * * Note 1(l) to chapter 94, HTSUS, states that Chapter 94 does not cover: Toy furniture or toy lamps or lighting fittings (heading 9503), billiard tables or other furniture specially constructed for games (heading 9504), furniture for magic tricks or decorations (other than electric garlands) such as Chinese lanterns (heading 9505). Note 1(t) to chapter 95, HTSUS, states that chapter 95 does not cover, “[e]lectric garlands of all kinds (heading 9405).” The ENs to heading 9505, HTSUS, provide, in pertinent part: This heading covers: (A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include: (2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases. * * * * * In accordance with the chapter notes to chapters 94 and 95 above, electric garlands are classified in heading 9405, HTSUS, as light fittings. Although all the subject light sculptures incorporate a string of electric lights around a frame, the light sculptures are not electric garlands as described in Primal Lite, Inc. v. United States, 15 F.Supp. 2d 915 (1998), aff’d, 182 F.3d 1362 (1999). The articles at issue here form three-dimensional shapes. Light sculptures framed in rope lights are not similar to electric garlands, which are short lengths of lighting capable of hanging on trees. See HQ 962965, dated November 9, 1999. Hence, the article does not meet the terms of Heading 9405, HTSUS, and is therefore not excluded from classification in heading 9505, HTSUS, by operation of note 1(t) to chapter 95. Merchandise is classifiable in heading 9505, HTSUS, as a festive article if the article satisfies two criteria:  (1) it must be closely associated with a festive occasion and (2) be used or displayed principally during that festive occasion.  Additionally, the items must be “closely associated with a festive occasion” to the degree that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.”  Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) and Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997). In addition to the guidelines set forth above, general criteria for determining “class or kind” with respect to classification were 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 (1976).  Those criteria include: general physical characteristics, expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), 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.   CBP has consistently considered light sculptures that are utilized during Christmas and are recognized symbols of the Christmas holiday to be decorative. See HQ 968267, dated August 30, 2006; HQ 962965, dated November 9, 1999; NY R02191, dated February 16, 2005; NY R01191, dated January 12, 2005; NY K86401, dated June 14, 2004; and NY H87842, dated January 28, 2002. Such light sculptures have included Santa figures, Christmas trees, sleighs, snowmen and reindeer. Gift box sculptures with other indicia of their use and association with the Christmas holiday have also been classified in heading 9505, HTSUS, as festive articles. For instance, NY K84858, dated April 5, 2004, classified lighted “Christmas presents” consisting of a steel frame, an outer nylon sleeve, a bow, and two pigtail lights in 9505, as a festive article. In NY J87068, dated August 27, 2003, a “candy keeper” in the shape of a wrapped Christmas present was deemed to constitute “a three-dimensional representation of an accepted symbol of the Christmas holiday season,” and thus classifiable as a festive article in heading 9505. NY J85952, dated July 25, 2003, also placed a “Christmas present made of crystal” in heading 9505. Finally, NY I88264, dated November 22, 2002, classified a “Gift 13 Pathmarker”, a wooden lawn decoration in the shape of a red gift with a red and white bow as a festive article. The “gift” was attached to a wooden stake for impaling in the ground, or it could also be hung from a metal hook on top of the bow. The instant gift box light sculpture is substantially similar to the articles classified as festive articles in these cases. Furthermore, the gift box shape, the red and green lighting and the lighted bow topping the frame are all indicative of the Christmas holiday. The instant light sculpture is thus sufficiently associated with the Christmas holiday to satisfy the first Park B. Smith criterion. The importer’s submissions establish that the environment of sale will be a portion of the store devoted to displaying Christmas or holiday items, which include other Christmas articles such as lighted Santas, Christmas trees, reindeer and sleighs. The channels of trade and environment of sale thus support classification in heading 9505, HTSUS. The manner of advertisement and display as well as the physical and symbolic characteristics of the subject merchandise are sufficient to establish the expectation of the ultimate purchaser that he is purchasing a Christmas ornament, and that the use of the article is likely to be limited to the Christmas season. Priced at $9.54, the gift box light sculptures are also an economically practical way of decorating one’s home during the Christmas season. The instant light sculptures are thus classifiable as festive articles of heading 9505, HTSUS, in accordance with the criteria set forth in Park B. Smith and Carborundum. Insofar as the article in question is classifiable as a festive article under Heading 9505, HTSUS, the subject light sculptures are excluded from classification in heading 9405, HTSUS, by virtue of Note 1(l) to Chapter 94. HOLDING: By application of GRI 1, the subject light sculptures are classified in heading 9505, HTSUS, as festive articles. They are specifically provided for in subheading 9505.10.25, HTSUS, which provides for: “[f]estive, carnival or other entertainment articles, including magic tricks and other practical joke articles…: Christmas ornaments: [o]ther: [o]ther.” The column one, general rate of duty is free. Since reclassification will result in a lower duty rate, you are instructed to allow the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director, Commercial and Trade Facilitation Division