Revocation of NY N325599, tariff classification of inflatable Olaf snowman with a sprig of holly leaves and red berries on its scarf

HQ H325364 May 2, 2024 OT:RR:CTF:CPMMA H325364 KSG/NAH CATEGORY: Classification TARIFF NO.: 9505.10.25 Ms. Lindsay B. Meyer, Esq. Venable LLP 600 Massachusetts Avenue, NW Washington, D.C. 20001 RE: Revocation of NY N325599, tariff classification of inflatable Olaf snowman with a sprig of holly leaves and red berries on its scarf Dear Ms. Meyer: This letter is in reference to your request for reconsideration on behalf of Gemmy Industries Co. of New York Ruling Letter (NY) N325599, dated April 27, 2022. Upon review, we have reconsidered NY N325599, and find the ruling is in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice proposing to revoke NY N087996 was published on May 17, 2023, in Volume 57, Number 19, of the Customs Bulletin. No comments were received in response to the notice. FACTS: In NY N325599, U.S. Customs and Border Protection (CBP) classified an inflatable lawn ornament Olaf Snowman with a red scarf with snowflake pattern and a sprig of holly leaves and red berries on the scarf in subheading 6307.90.98, HTSUS. Olaf is a fictional Disney character that was in the animated movie “Frozen.” “Frozen” is an animated movie about a mythical kingdom that is experiencing eternal Winter. The lawn ornament is made of polyester material. The Olaf Snowman inflatable lawn ornament described below is designed and marketed for the Christmas holiday and is sold as a seasonal item. The inflatable lawn ornament was described in NY N325599 as follows: SKU# 32189201, described as “Olaf Inflatable Lawn Ornament,” is a three-dimensional Air-blown® inflatable decoration of a snowman “Olaf” from the Disney movie Frozen. The inflatable snowman is composed of 100 percent polyester woven fabric. The item is decorated with screen printed brown eyebrows, black pupils inside a round blue eye, three black buttons, and a 10 ½ inch long by 4 ½ inch wide blue smile. The snowman features three-dimensional brown twigs as arms and hair on its head, a carrot nose, and two snowball legs. The snowman also features a red scarf with white snowflakes, a semicircle of 100 percent polyester nonwoven fabric measuring 3 7/8 inches in length by 1 inch in width to provide the appearance of buck teeth when inflated, and two holly leaves with three acrylonitrile butadiene styrene (ABS) plastic red holly berries. Inside the snowman sewn to the bottom are three pouches, measuring 7 5/8 inches in length by 4 ½ inches in width, filled with crushed stone weighing 300 grams each, to help the snowman stand upright in a sitting pose when inflated and a LED light that is attached to a blower fan with a 120V AC/DC power adapter. When the power adapter is connected to an electrical outlet and the air intake is zippered closed, the item will inflate and illuminate. The inflatable lawn decoration does not provide practical illumination. The snowman measures 29 inches in length by 27 ½ inches in width by 48 inches in height when fully inflated. The item is imported with four iron stakes and two tethers that attach to four two-inch white polyester webbing side loops for securing it to the ground. ISSUE: Whether the Olaf figure inflatable lawn ornament described above that has a sprig of holly leaves and red berries on the scarf is classifiable in heading 9505, HTSUS. LAW AND ANALYSIS: 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 2024 HTSUS headings under consideration are the following: 6307 Other made up articles, including dress patterns: 6307.90 Other: Other: 6307.90.98 Other 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: Christmas Ornaments: 9505.10.25 Other In Midwest of Cannon Falls, Inc. v. United States, (Midwest) 122 F.3d 1423, 1429 (Fed. Cir. 1997), the Court of Appeals for the Federal Circuit (CAFC) held that classification as a “festive article” under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article must 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.” Michael Simon Design, Inc. v. United States, (Michael Simon) 452 F. Supp 2d. 1316, 1323 (Ct. Int’l Trade 2006 and Park B. Smith, Ltd. v. United States,( Park B. Smith) (347 F.3d 922 (Fed. Cir 2003)). In Michael Simon, the Court of International Trade applied a two-prong test for determining whether a particular article is classifiable as a good of heading 9505, HTSUS: “[C]lassification as a ‘festive article’ under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article [be] used or displayed principally during that festive occasion.” Additionally, the Court stated that 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.” In Park B. Smith, the Court of International Trade ruled that articles “bearing ‘festive symbols,’ such as Christmas trees, Santa’s, holly, ghosts and bats, Easter eggs and bunnies,” were prima facie classifiable as “festive articles” under heading 9505. CBP has considered a feature such as a hat or scarf bearing holly leaves and red holly berries as a festive symbol closely associated with Christmas. For instance, see NY N306252, dated September 20, 2019, in which CBP classified a water globe lantern with a snowman wearing a top hat decorated with holly leaves and berries as a festive article in heading 9505, HTSUS; NY N286040, dated May 16, 2017, in which a snowman with a stocking cap featuring holly leaves and berries was classified as a festive article in heading 9505, HTSUS. While there is a connection between Olaf and snow and the season of Winter, the Olaf figure alone is not specifically associated with Christmas. An Olaf figure alone might be appropriate to display for instance at a children’s event or an event associated with the movie “Frozen.” It would not be aberrant to display an Olaf figure outside the Christmas season. However, this Olaf figure has a sprig of holly on its scarf. The holly leaves and red berries are a motif traditionally closely associated with Christmas and used or displayed principally during the Christmas season. The Olaf figure with a sprig of holly leaves and red berries is closely associated with Christmas to the degree that its use during other time periods would be aberrant. It is not a general winter decoration; it is likely to be displayed only during the Christmas season because of the holly leaves and red berries motif. Further it is marketed as a Christmas decoration and sold during the Christmas season. Based on the above, we find that pursuant to GRI’s 1 and 6, the Olaf inflatable lawn ornament is classified in subheading 9505.10.25, HTSUS. HOLDING: Pursuant to GRI’s 1 and 6, the Olaf inflatable lawn ornament, as described above, is classified according to GRI 1 in heading 9505, HTSUS, and in accordance with GRI 6, in subheading 9505.10.25, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas Ornaments: Other”. The column one, general rate of duty is FREE. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/. EFFECT ON OTHER RULINGS: NY N325599 is revoked in accordance with the above analysis. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Yuliya A. Gulis, Director Commercial and Trade Facilitation Division cc: NIS Sandra Carlson, NCSD