OT:RR:CTF:CPMM H143395 APP
Ms. Rita Pitts
Dillard’s, Inc.
1600 Cantrell Road
Little Rock, AR 72201
RE: Modification of NY I82063 and NY I82064; Tariff classification of decorative wooden nutcrackers from Germany
Dear Ms. Pitts:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letters (“NY”) I82063 and I82064, dated June 17, 2002, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of decorative wooden nutcrackers.
In NY I82063, CBP classified a wooden nutcracker representing Dorothy from “The Wizard of Oz” under heading 9505, HTSUS, specifically under subheading 9505.10.15, 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: Of wood.” The remaining wooden nutcrackers in NY I82063 representing Cowardly Lion, Scarecrow, and Tin Man from “The Wizard of Oz” were classified under heading 4420, HTSUS, specifically under subheading 4420.10.00, HTSUS, which provided for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood.” CBP’s reasoning in NY I82063 was that only “human” nutcrackers can be considered “festive” for tariff classification purposes.
In NY I82064, CBP classified a wooden snowman nutcracker and a wooden rat nutcracker under heading 4420, HTSUS, specifically under subheading 4420.10.00, HTSUS. Even though CBP correctly classified the two nutcrackers in NY I820064, CBP incorrectly concluded that “non-human” nutcrackers cannot be considered “festive” articles for tariff classification purposes.
We have determined that both rulings are incorrect and for the reasons set forth below we hereby modify NY I82063 (the tariff classification of the Dorothy nutcracker and the conclusion that only human nutcrackers can be “festive”) and NY I82064 (the conclusion that non-human nutcrackers cannot be “festive”).
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. § 1625(c)(l)), 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), a notice was published in the Customs Bulletin, Volume 52, Number 27, on July 5, 2018, proposing to modify NY I82063 and NY I82064, and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The merchandise in NY I82063 consists of four decorative wooden nutcrackers ornamented with paint, fabric clothing, and/or accessories of various materials, representing Dorothy, Cowardly Lion, Scarecrow, and Tin Man from the 1939 film “The Wizard of Oz.” A lever on the back can be operated to make the mouth of each figure move. Style number ZDIES1805, Cowardly Lion (18 inches high), is a wooden lion figure with a crown dressed in a fabric robe. Style number ZDIES1806, Dorothy figure
(15 inches high), is in a fabric dress. Style number ZDIES0961, Scarecrow figure
(17 inches high), is in fabric apparel. Style number ZDIES0960, Tin Man (19 inches high), is painted in silver to simulate a tin suit.
The merchandise in NY I82064 consists of two decorative wooden nutcrackers ornamented with paint, fabric clothing, and/or accessories of various materials. A lever on the back can be operated to make the chin of each move. Style number 227T3137GS is a wooden snowman figure (8.5 inches high) with a black hat. Style number S1849 is a wooden standing rat figure (16 inches high) dressed in a fabric vest, jacket, and hat, representing Herr Ratty-Wind from the children’s novel “The Wind in the Willows” by Kenneth Grahame.
ISSUE:
Whether the instant six nutcrackers are classified in heading 4420, HTSUS, as statuettes or other ornaments, of wood, or in heading 9505, HTSUS, as Christmas ornaments, of wood.
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.
GRI 2(b) provides that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(a) states that goods should be classified according to the heading, which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of the items in a set put up for retail sale. GRI 3(b) provides that “composite goods consisting of different materials or made up of different components” are to be classified “as if they consisted of the material or component which gives them their essential character,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.”
Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration in this case are as follows:
4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
Pursuant to Note 1(p) to chapter 44, HTSUS, this chapter does not cover articles of chapter 95, HTSUS.
Note 1(w) to chapter 95, HTSUS, states that this chapter does not cover “[t]ableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).”
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 44.20, provides, in relevant part, that:
This heading covers panels of wood marquetry and inlaid wood, including those partly of material other than wood.
The articles of this heading may be made of ordinary wood or of particle board or similar board, fibreboard, laminated wood or densified wood (see Note 3 to this Chapter).
It also covers a wide variety of articles of wood (including those of wood marquetry or inlaid wood), generally of careful manufacture and good finish, such as: small articles of cabinetwork (for example, caskets and jewel cases); small furnishing goods; decorative articles. Such articles are classified in this heading, even if fitted with mirrors, provided they remain essentially articles of the kind described in the heading. Similarly, the heading includes articles wholly or partly lined with natural or composition leather, paperboard, plastics, textile fabrics, etc., provided they are articles essentially of wood.
The heading includes: … (3) Statuettes, animals, figures and other ornaments.
EN 95.05, states, in relevant part, that heading 9505 covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non durable material. They include:
(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(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 …
The heading excludes statuettes, statues and the like of a kind used for decorating places of worship.
The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.
First, we will determine whether the instant decorative wooden nutcrackers are classified in heading 9505, HTSUS. If they are classified in heading 9505, HTSUS, they will be excluded from heading 4420, HTSUS, by application of Note 1(p) to chapter 44, HTSUS. Heading 9505, HTSUS, covers decorative articles for Christmas trees and articles traditionally used at Christmas festivities. See EN 95.05. To be classified as “festive” under chapter 95, HTSUS, an article must satisfy two criteria: (1) It must be closely associated with a festive occasion and (2) the article is used or displayed principally during that festive occasion. See Park B. Smith, Ltd. V. United States, 347 F.3d 922, 927-29 (Fed. Cir. 2003) (citing Midwest of Cannon Falls v. United States, 122 F.3d 1423, 1427-29 (Fed. Cir. 1997)). If the use or display of the article at other times would not be “aberrant” then it does not satisfy the criteria for “festive” articles under chapter 95, HTSUS. Park B. Smith, 347 F.3d at 929. The utilitarian function of articles does not preclude their classification as “festive” articles under heading 9505, HTSUS. See Michael Simon Design, Inc. v. United States, 501 F.3d 1303 (Fed. Cir. 2007), aff’d, 452 F. Supp. 2d 1316 (CIT 2006).
In Midwest of Cannon Falls, 122 F.3d at 1423, the Court of Appeals for the Federal Circuit (“CAFC”) classified decorative nutcrackers (Santa, soldier, king, presidents, athletes, and professionals), whose form and design were similar to that of the soldier/king nutcracker from Pyotr Ilyich Tchaikovsky’s “The Nutcracker,” a ballet adaptation of E. T. A. Hoffmann’s story “The Nutcracker and the Mouse King,” under heading 9505, HTSUS, as wooden festive articles. The nutcrackers were sold to customers mainly during the Christmas season and lacked functionality and suitability as decorative items outside the Christmas holiday season. In Wilton Indus. v. United States, 31 CIT 863, 907-908 (2007), the CIT held that a cookie cutter in the shape of a traditional nutcracker sold with Christmas-themed cookie cutters was a symbol “closely associated with” Christmas and “so intrinsically linked to Christmas” that its use featuring this motif at other times of the year would be “aberrant.” The court also held that cookie cutters in the shape of an unadorned snowman, a star, a drum, a rocking horse, and a teddy bear were not similarly “closely associated” with Christmas and their use at other times would not be “aberrant.”
The subject six nutcrackers are decorative wooden figures representing “The Wizard of Oz” characters, a snowman, and Herr Ratty-Wind from “The Wind in the Willows.” Wooden nutcrackers date back to the 1800s and nowadays they are manufactured to meet the demands of collectors year-round. Collectors look for the traditional toy soldier/king nutcracker from “The Nutcracker” ballet, which has become a Christmas tradition, as well as other designs such as royalty, bakers, chimney sweeps, and policemen nutcrackers. Unlike “The Nutcracker” ballet type soldier/king nutcracker, the instant nutcrackers are not closely associated with the Christmas holiday. See Wilton Indus., supra. Even if the instant wooden figures are used or displayed principally during the Christmas holiday season, their use or display at other times would not be “aberrant.” Their use may not be confined to the holiday season and therefore they are not closely associated only with Christmas. Just like the cookie cutters in the shape of an unadorned snowman, a star, a drum, a rocking horse, and a teddy bear in Wilton Indus., supra, the instant wooden figures are not associated with the Christmas holiday and can be used or displayed at other times of the year.
In HQ 962453, dated November 3, 1999, CBP clarified that an ordinary snowman is “not automatically an accepted symbol for the recognized holiday of Christmas” and in
NY 872310, dated April 6, 1992, CBP classified the same characters (Cowardly Lion, Dorothy, Tin Man, and Scarecrow) from “The Wizard of Oz” as statuettes and other ornaments of wood of heading 4420, HTSUS. Just like the wooden figures in NY 872320, the instant four nutcrackers from “The Wizard of Oz” are not associated with the Christmas holiday season. The remaining two wooden figures, a snowman associated with the winter season and the Herr Ratty-Wind character from the children’s novel “The Wind in the Willows,” are also not associated with the Christmas holiday season.
Since the instant six wooden figures are not closely associated with the Christmas holiday and their use or display at other times would not be “aberrant,” they are not classifiable under heading 9505, HTSUS. It is immaterial whether they are “human” or “non-human” nutcrackers. See Midwest of Cannon Falls, supra (the CAFC did not distinguish between human and non-human nutcracker characters).
It is our determination that the instant six nutcrackers are wooden statuettes covered by heading 4420, HTSUS. See EN 44.20, supra. By application of GRIs 1 and 3(b), even though they are ornamented with paint, fabric clothing, and/or accessories of various materials, they are classified as statuettes of wood consistent with EN 44.20 because they are essentially of wood. CBP has previously classified wooden nutcrackers in heading 4420, HTSUS, specifically under subheading 4420.10.00, HTSUS. See NY M84661, dated July 25, 2006 (classifying three styles of decorative wooden nutcrackers made of wood, except for the heads and hands, which were made of plush textile). It should be further noted that heading 4420, HTSUS, is more specific than heading 9505, HTSUS, because the term “articles of wood” covers a narrower set of items and more clearly identifies the wooden figures than the term “festive articles.” See Russ Berrie & Co. v. United States, 381 F.3d 1334 (Fed. Cir. 2004) (concluding that heading 7117, HTSUS, is more specific than heading 9505, HTSUS, because the description “imitation jewelry” is by name while the description “festive article” is by class).
Therefore, the wooden snowman and Herr Ratty-Wind nutcrackers in NY I82064 and the wooden Cowardly Lion, Scarecrow and Tin Man nutcrackers in NY I82063 were correctly classified in heading 4420, HTSUS. The Dorothy nutcracker in NY I82063, which was incorrectly classified in heading 9505, HTSUS, should be classified in heading 4420, HTSUS.
HOLDING:
By application of GRIs 1, 3(b), and 6, all nutcrackers in NY I82063 and
NY I82064 are classified in heading 4420, specifically under subheading 4420.10.00, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood.” The 2018 column one, duty rate is 3.2% ad valorem.
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/current.
EFFECT ON OTHER RULINGS:
NY I82063, dated June 17, 2002, is MODIFIED with respect to the tariff classification of the Dorothy wooden nutcracker and the tariff classification analysis.
NY I82064, dated June 17, 2002, is MODIFIED with respect to the tariff classification 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division