CLA 2 RR:CR:GC 961445 MMC
Port Director of Customs
C/O Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Protest 1001-97-103884; “Carousel Christmas Candlesticks” and “Lighthouses of Christmas Candlesticks”; Candle holders
Dear Port Director:
This is our decision on Protest 1001-97-103884, concerning your action in classifying and assessing duty on articles identified as “Carousel Christmas Candlesticks” and “Lighthouses of Christmas Candlesticks” under the Harmonized Tariff Schedule of the United States (HTSUS). The goods were entered by MBI, Inc./The Danbury Mint in 1996 and the entries were liquidated On March 7, 14 and 28, 1997. A protest, with a memorandum in support of the protest and a sample, were timely filed on May 29, 1997.
FACTS:
The “Carousel Christmas Candlesticks” measure 6 inches long, 3_ inches wide and 6½ inches tall. According to the submitted literature they are made of bisque porcelain, hand painted and decorated with 23kt gold. The candle holder consists of a three dimensional carousel horse on a base, with three dimensional toys and presents surrounding the horse on the base. The submitted literature reads, in pertinent part, as follows:
[a]round and around the carousel they prance...beautiful, bejeweled horses whirl their riders through the warm, summer nights in a magical ritual of childhood. Close your eyes...you can almost see the twinkling lights of the carousel and hear the familiar melody of the calliope.
[n]ow, the timeless appeal of the carousel horse has been captured in Carousel Christmas Candlesticks----a magnificent pair of candlesticks you can bring into your home for the holidays.
...[t]he Carousel Christmas Candlesticks are unlike any candlesticks you’ve ever seen before! All of the beauty, elegance and spirit of an old-fashioned carousel horse have been captured in these captivating Christmas candlesticks. Each is unique---an expertly sculpted, richly detailed work of art portraying a proud carousel horse on its gilded post.
[a]dorned with colorful Christmas flowers, each graceful steed is surrounded by a glorious bounty of holiday presents sure to delight any good little boy or girl....
[f]or a special touch of elegance, each carousel horse is lavishly decorated with hand-applied 23 kt gold accents. Look at the gleaming bridles, the radiant musical instruments and other traditional Christmas symbols---all shining with the luster of real gold.
The “Carousel Christmas Candlesticks” are sold by direct mail by the Danbury Mint and retail for $62.50 a piece.
The “Lighthouses of Christmas Candlesticks” measure 7½ inches high and 4 inches in diameter, including glass candle holders. They are made of cold-cast porcelain, a blend of powdered porcelain and resin. The submitted literature reads, in pertinent part, as follows:
[t]he lighthouse sculptures of Cheryl Spencer Collin have been coveted by collectors ever since she created her first enchanting masterpiece in 1984. Unparalleled for their charming detail and imaginative touches, Spencer Collin’s sculptures reflect a unique romance and character. This talented artist has a special gift for capturing the magic of these magnificent sentinels of the sea.
[t]he Danbury Mint has commissioned Cheryl Spencer Collin to create a special pair of fanciful lighthouse candlesticks guaranteed to make your Christmas merry and bright!
[n]ow, you can celebrate the joys of the season with the Lighthouses of Christmas Candlesticks, a set of cold-cast porcelain candlesticks brimming with holiday charm....
[t]he red and white striped lighthouse is occupied by none other than Mr. and Mrs. Claus. Notice Dasher, Dancer, Prancer and the other reindeer peering out from their festively decorated stalls. Even Rudolph with his “nose so bright” is here! ...Look in the lighthouse’s upper window, over the big gold-colored bow, and you’ll see Mrs. Claus enjoying the ocean view.
[t]he black and white striped lighthouse adorned with red bow is where the North Pole animals gather to celebrate the holiday season...
The “Lighthouses of Christmas Candlesticks” are sold by direct mail by the Danbury Mint and retail for $29.95 a piece.
The HTSUS headings under consideration are:
6810 [a]rticles of cement, of concrete or of artificial stone, whether or not reinforced
6913 [s]tatuettes and other ornamental ceramic articles
9405 [l]amps and lighting fittings including searchlights and spotlights and parts 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
9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof
ISSUE:
Whether the candle holders are properly classified in heading 9405 as lighting fittings or in heading 9505, HTSUS, as a festive articles.
LAW AND ANALYSIS:
In Midwest of Cannon Falls, Inc. v. United States, Court No. 92 03 00206, 1996 Ct. Int’l Trade LEXIS 15 (Ct. Int’l. Trade, January 18, 1996), and 122 F.3d 1423 (Fed.Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUS, as a “festive article” 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.
In Headquarters Ruling Letter 960371 dated April 14, 1998, we classified a 5 inch tall ceramic candle holder molded to create a three dimensional representation of Santa Claus’ head and face. On top of Santa Claus’ head was a holly crown. Four additional complete representations of Santa Claus separated by evergreen trees formed the remainder of the structure below Santa Claus’ beard.
By application of the above criteria, we held that the three dimensional Santa Claus candle holder was classifiable as a festive article because in Midwest, Christmas was recognized as a holiday and Santa Claus, in his various forms, an accepted symbol of that holiday. Furthermore, the court included within the scope of heading 9505, HTSUS, utilitarian articles which were three dimensional representations of an accepted symbol for a recognized holiday. As the candle holder was a utilitarian object, in that it functioned by holding a candle, and was a three dimensional representation of an accepted symbol, Santa Claus, for a recognized holiday, Christmas, it was classified as a festive article.
The same cannot be said for the subject candle holders. While they are accented by details which may suggest a seasonal use, the subject articles are, themselves, three dimensional representations of carousel horses and lighthouses. Such articles are not recognized as an accepted symbol for a recognized holiday. Furthermore, the articles are marketed for use during a “season” and not for a particular holiday. For the foregoing reasons, we are of the opinion that they are classifiable in heading 9405, HTSUS. Because the subject candle holders are articles of Chapter 94, they are precluded from classification in the protestant’s alternatively claimed classifications in headings 6810 and 6910, HTSUS. (See Note 1(k), Chapter 68; Note 2(ij), Chapter 69.)
HOLDING:
The protest should be DENIED. The “Carousel Christmas Candlesticks” and “Lighthouses of Christmas Candlesticks” are classifiable under subheading 9405.50.40, HTSUS, as “[l]amps and lighting fittings including searchlights and spotlights and parts 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: [n]on electrical lamps and lighting fittings:[o]ther.”
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