CLA-2 OT:RR:CTF:TCM H030207 CKG
Category: Classification
Tariff No.: 8543.89.9795
Port Director
Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Application for Further Review of Protest No. 2704-2007-102287; classification
of Radiant Fiber-Optic Angel
Dear Port Director,
This is in response to the Application for Further Review of Protest Number 2704-2007-102287 filed on behalf of the importer, Avon Products, Inc. (‘Protestant”), contesting the Customs and Border Protection’s (CBP) classification and liquidation of 18 entries of a Radiant Fiber-Optic Angel under heading 8543 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof.”
FACTS:
The protest describes 18 entries from July 9, 2006 to October 20, 2006. On May 25, June 8, June 22, June 29, July 6, August 3, August 24, and August 31 of 2006, CBP liquidated these entries under subheading 8543.89.97, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other.” Protestant claims classification in subheading 9505.10.50, 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: Other.”
The subject article is a 26” high angel ornament. The angel’s head, torso and hands are made of plastic. The figure has wire arms covered by a textile full length dress. The figure’s textile wings, halo and dress are illuminated by fiber optic lights, which are powered by an attached battery pack and alternate among the colors red, green, white and blue. The angel’s dress forms the cone-shaped body of the figure. The cylindrical housing is closed. The angel is holding a bouquet of pink flowers, alleged by the importer to be “Christmas roses”.
ISSUE:
Whether the subject angel figurine is classifiable as an electrical machine of heading 8543, HTSUS, or as a festive article of heading 9505, HTSUS.
LAW AND ANALYSIS:
The matter is protested 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. 2704-2007-102287 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 decision made at a port with respect to the same or substantially similar merchandise.
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
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 2006 HTSUS provisions at issue are as follows:
8543: Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.89: Other machines and apparatus:
Other:
Other:
Other:
8543.89.97: 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:
Other:
9505.10.50: Other
* * * * *
Section XVI, Note 1(p) provides:
This section does not cover…Articles of chapter 95
* * * * *
The instant merchandise is described by the terms of heading 8543, as an electrical apparatus not specified elsewhere in the chapter. It functions as a battery-powered decorative article that illuminates itself. However, pursuant to Note 1(p) to Section XVI, articles of Chapter 95 are excluded from Section XVI, which includes Chapters 84 and 85. If the subject angel figurine is classifiable in heading 9505, it is excluded from classification in heading 8543, even if described therein. We must therefore first address whether the instant article is classifiable as a festive article of heading 9505, HTSUS.
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). However, articles directed to general or seasonal use instead of to specific holiday festivals do not meet the criteria of Chapter 95. 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, 929 (Fed. Cir. 2003).
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.
In Headquarters Ruling Letter (HQ) 962567, dated March 31, 2000, we stated that where classification in 9505 is rejected, “it is usually because there is insubstantial credible evidence of the articles’ association with a particular holiday. Examples would include angel figures and figurines, even with babies, where there is no particular connection with the celebration of the recognized holiday of Christmas.” In this vein, CBP has classified angel figures with an additional and distinct connection to the Christmas holiday as festive articles, and declined to do so where such an association was not present. In some cases, the association was clear; in New York Ruling Letter (NY) H83693, August 10, 2001, for example, if the left wrist of a plastic, kneeling angel was pressed, the figure’s eyes closed, the hands came together, and “silent night” would play. CBP similarly held in NY H88475, dated March 15, 2002, that tabletop figurine angels holding banners with the words JOY and NOEL were festive articles. In NY C89231, dated July 2, 1998, and NY C89182, dated July 1, 1998, CBP classified angel figures lacking symbols specifically associated with Christmas as festive articles due to their suitability as tree toppers. The merchandise in these cases were lightweight and consisted of an open cone-shaped body.
The importer describes the instant article as an “angel tree topper” and argues that the physical characteristics of the instant article establish that the article is festive for the purposes of heading 9505, HTSUS. However, the instant article is not suitable for use as a tree ornament. The weight of the angel (due in part to the attached battery pack), and in particular the closed bottom, distinguish it from the merchandise in NY C89231 and NY C89182. The instant article is better suited for use on a flat surface such as a counter or table than a tree. The importer also argues that the illumination of the angel’s wings, halo and dress with red, green, blue and white lights suggest an association with Christmas, but offers no evidence to support this claim. While such multi-colored lights are used at Christmas, the holiday does not have a monopoly on the colors red, green, white and blue. Many articles feature illumination which are not considered festive for that reason alone. See e.g., N027341, dated May 20, 2008, wherein we stated that “Fiber optic colors are not recognized festive symbols”; See also, N012101, dated June 7, 2007; NY L83707, dated April 14, 2005.
The importer further claims an association with Christmas holiday with regard to the bouquet of “Christmas roses” held by the angel. Internet research confirms that the Christmas rose is widely considered a Christmas flower, along with the poinsettia, ivy, mistletoe, etc. See, http://en.wikipedia.org/wiki/Christmas_flowers; http://www.wf-f.org/04-4-Traditions.html (Christian Origins of Familiar Christmas Customs); and http://www.thechristmasemporium.com/index.php?option=com_content&view=article&catid=37:Christmas%20Customs&id=718:christmas-rose&Itemid=95. The helleborus niger flower, or Christmas Rose, is described as follows:
The prolific flowers are usually white, with green tinged centers that age to pink. You may also see some with strong pink tones in the petals. H. niger ‘White Magic’ has large white flowers that blush pink as they age”. http://gardening.about.com/od/winterinthegarden/a/ChristmasRose.htm.
However, the resemblance of the pink flowers in the angel’s hand to Christmas roses is hardly definitive, and there is no mention of the “Christmas Rose” anywhere on the internet site offering the item for sale. Neither does the general environment of sale encourage classification of the Radiant fiber-optic angel as a festive article. There is no explicit mention of Christmas in the protestant’s sales literature.
With regard to the second prong of the Park B. Smith test (i.e., whether the
articles are used or displayed principally during a festive occasion such that use or
display at any other time would be aberrant), there is no evidence that the article is sold
primarily during the Christmas season, or that it is sold in a section of a store or catalog
devoted to holiday articles.
Accordingly, we find that the instant angel sculpture is not of a class or kind of merchandise used to decorate the home during the Christmas season. The instant article is therefore not classified in heading 9505, HTSUS. Due to the attached battery pack and fiber optic lights, the instant article is classifiable as an electrical apparatus of heading 8543, HTSUS.
HOLDING:
By application of GRI 1, the Radiant fiber-optic angel is classified in heading
8543, HTSUS, specifically subheading 8543.89.97, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” The 2006 general, column one rate of duty is 2.6% ad valorem.
You are instructed to deny 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 the Office of Regulations and Rulings 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