CLA-2 OT:RR:CTF:TCM H039566 CKG
Joseph Stinson, Director of Import Administration
Liss Global, Inc.
7746 Dungan Road
Philadelphia, PA 19111
RE: Revocation of NY N035321, dated August 18, 2008; classification of
a beaded penguin figure from China
Dear Mr. Stinson:
This letter is in response to your letter of September 10, 2009, requesting the reconsideration of New York Ruling Letter (NY) N035321, issued to you on August 18, 2008. In that ruling, U.S. Customs and Border Protection (CBP) determined that a beaded penguin figure made predominately of plastic beads was classified under subheading 3926.90.35, HTSUS, as other beads and spangles of plastics, not elsewhere specified or included.
In your request for reconsideration, you assert that the proper classification of the penguin figure is either subheading 3926.40.0000, HTSUS, which provides for “other articles of plastics…statuettes and other ornamental articles,” or under subheading 9505.10.2500, HTSUS, which provides for “festive, carnival or other entertainment article, including magic tricks and practical joke articles; parts and accessories thereof: Christmas ornaments: other: other.”
CBP has reviewed N035321 and determined that the classification of the beaded penguin figure in subheading 3926.90.35, HTSUS, was incorrect.
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, notice proposing to revoke NY N035321 was published on March 11, 2015, in Volume 49, Number 10, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
The merchandise at issue is a beaded, lighted penguin lawn ornament, item no. 9002861. In NY N035321, the product was described as follows:
The figure is 14 inches high and composed of a coated metal frame in the shape of a penguin. The frame is decorated in multiple plastic beads in red, green, orange and clear. Many of the beads are lighted with bulbs that run through the frame on white PVC-covered wires equipped with a plug to be input into a power source.
Although our files contain pictures of the subject merchandise, no samples were received or examined by our office.
ISSUE:
Is the beaded penguin figure classifiable under heading 3926, HTSUS, as “other articles of plastics,” or under heading 9505, HTSUS, as “festive articles?”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.40.00 Statuettes and other ornamental articles
* * *
3926.90 Other:
Beads, bugles, and spangles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included:
3926.90.35 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:
Other:
9505.10.25 Other
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS.
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.
According to EN 39.26, heading 3926 only covers “articles not elsewhere specified or included, of plastics.” Heading 3926, HTSUS, is a general heading or basket provision, as evidenced by the word “other.” See The Item Company v. United States, 98 F.3d 1294, 1296 (Fed. Cir. 1996). Classification of imported merchandise in a basket provision is only appropriate if there is no tariff provision that covers the merchandise more specifically. See EM Industries, Inc. v. United States, 22 Ct. Int’l Trade 156, 165 (1998).
Hence, we must first determine if the subject merchandise constitutes “festive articles” within the scope of heading 9505, HTSUS before considering classification in heading 3926, HTSUS.
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) (citing Park B. Smith, Ltd. v. United States, (25 Ct. Int’l Trade 506, 509 (2001)).
The “festive article” classification can be applied when the article is clearly associated with the festive holiday of Christmas. Even though there is a connection between penguins and snow and winter climates, a penguin alone is not specifically associated with Christmas. A penguin figure might be appropriate to display throughout the winter season, well after Christmas.
However, the lighted penguin figure is topped with a string of lights shaped like a hat, which is claimed to be a Santa hat. A Santa hat, a cone-shaped hat with a fur pom-pom at the top and a fur brim to fit around the head, is an article traditionally associated with Christmas and the Christmas season. (HQ H076796, dated December 17, 2009 “We believe that both the “Santa shaped hat” and the “Elf shaped hat” are closely associated with Christmas because the physical appearance of each is so intrinsically linked to Christmas that their use during other time periods would be aberrant.”). Figures that are not per se associated with the holiday of Christmas but that are featured wearing Santa hats have been held to be festive articles. See e.g., NY N241819, dated May 14, 2013; NY N007110, dated February 22, 2007; NY N097299, dated March 15, 2010; NY F89282, dated July 18, 2000.
The hat in the lighted penguin figure is red, cone-shaped, with a white fur pom-pom at the top and a green fur brim. Although Santa hats are most often styled with a white brim, CBP has not held that certain colors are required for a hat to be considered a Santa hat. See e.g., NY L85128, dated June 3, 2005 (holding that children’s Santa hats, with white bands, pink, purple or blue tops, and a white heart at the tip were festive articles of heading 9505, HTSUS), and NY J82576, dated April 25, 2003 (holding a Santa hat with animal print cuff was classified in heading 9505). Green and red is a color combination more commonly associated with Christmas than white and pink, purple or blue, or animal print. Thus, we agree that the hat is recognizably a Santa hat and a festive motif closely associated with Christmas.
The penguin with Santa hat 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, both because of the Santa hat motif and its use as a lighted lawn sculpture, which with the occasional exception are displayed only during the Christmas season. This conclusion is consistent with past CBP rulings on similar holiday light sculptures. See e.g., HQ 962100, dated November 9, 1999; HQ 963198, dated September 26, 2000; and HQ H020852, dated May 8, 2009.
HOLDING:
The lighted penguin figure is classified in heading 9505, HTSUS, specifically subheading 9505.10.25, HTSUS, as “Festive, carnival or other entertainment articles: Articles for Christmas festivities and parts and accessories thereof: Christmas Ornaments: Other: Other.” The 2015 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 http://www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
NY N035321, dated August 18, 2008, is REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division