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HQ 960231




December 16, 1997

CLA-2 RR:CR:GC 960231 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500; 9505.10.5020

Port Director of Customs
P.O. Box 619050
Dallas/Fort Worth Airport, Texas 75261-0950

RE: Protest 5501-96-100348, unfinished plaster-craft Christmas ornaments and mini village buildings

Dear Port Director:

This is our decision on Protest 5501-96-100348, concerning your action in classifying and assessing duty on unfinished plaster-craft Christmas ornaments and mini village buildings, under the Harmonized Tariff Schedule of the United States (HTSUS). The entry was liquidated on August 23, 1996. The protest was timely filed on November 20, 1996.

FACTS:

The items consist of unfinished plaster-craft Christmas ornaments (sequence 4000 and 70000) and traditional mini village buildings (sequence 90000). The ornaments depict representations of Santa Claus, angels, a snowman, a toy soldier, etc., and feature a hole in the back for hanging them. All of the items will be sold in craft stores. Photocopies of catalog depictions were submitted to show how the articles may look when finished, that is, painted. The 90000 sequence mini village buildings measure from 5-1/2 to 9-1/2 inches in height and from 5 to 5-1/2 inches in width. They consist of houses, churches, schools, and stores. The protestant claims that all the articles are imported only during the Christmas season, for sale and use only then, as a basis for classifying the articles as festive, in heading 9505, HTSUS. You classified all of the merchandise as other articles of plaster in heading 6809, HTSUS.

ISSUE:

Whether the unfinished plaster-craft Christmas ornaments and mini village buildings are classifiable in heading 6809, HTSUS, as other articles of plaster or in heading 9505, HTSUS, as festive articles.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, 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. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. See, T.D. 89-80, 54 Fed.Reg. 35127
(August 23, 1989).

GRI 2(a) states in pertinent part that:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

Heading 9505, HTSUS, provides for, among other items, festive, carnival, and other entertainment articles. The ENs to 9505 indicate that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs . . .

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996) and Court No. 96-1271, 96-1279, 1997 U.S. App. LEXIS 21617 (Fed. Cir. August 14, 1997), the court addressed the broad issues of what constitutes an "ornament" and whether or not articles are classifiable as "festive." In essence, we believe that the court applied the general criteria for classification 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, because the court in Midwest considered the marketing, advertising, methods of display, limitation with respect to selling season, etc. deferentially.

In Carborundum, the court provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. Those factors include: general physical characteristics, the 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. Also see, Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (September 6, 1990).

Even prior to the recent Midwest decision, Customs would have classified finished Christmas ornaments designed to hang from a Christmas tree as festive articles in heading 9505, HTSUS. See, HQ's 957145 (February 28, 1995), 089359 (August 1, 1991), 087293 (August 30, 1990), 083330 (April 10, 1990), 083180 (February 28, 1990). Additionally, Customs has generally classified finished mini-village building collections as festive articles in heading 9505, HTSUS. See, HQ's 958240 and 958259 (March 25, 1996), 958409 (April 19, 1996), 958410 and 958412 (April 23, 1996), 958556 (April 29, 1996), 958747 (September 20, 1996), 957706
(June 21, 1995), 958245 (October 24, 1995).

Here, the issue is whether the unfinished articles present characteristics sufficient to classify them as finished articles, by application of GRI 2(a). In that regard, we find that the general physical characteristics of the articles are sufficient to classify them as finished articles. The tree ornaments and mini-village buildings are sculpted three-dimensional articles similar to those Customs has ruled upon, but for the fact that they have not been painted. The expectation of the ultimate purchaser is to use the articles either as imported or as painted. As the protestant claims, one may choose to use them without painting them. Moreover, craft stores are typical channels of trade for festive articles. In sum, the nature of the articles and the environment of sale (accompanying accessories, manner of advertisement and display) are such that we are satisfied that these items are for use to celebrate Christmas.

Based on the information before us, it is our determination that the unfinished plaster-craft Christmas ornaments (sequence 4000 and 70000) and traditional mini village buildings (sequence 90000) meet the criteria for classification as festive articles. They are classifiable in heading 9505, in the same manner as finished articles, by application of GRI 2(a). The plaster-craft Christmas ornaments (sequence 4000 and 70000) fall into subheading 9505.10.2500, HTSUS, and the traditional mini village buildings (sequence 90000) fall into subheading 9505.10.5020, HTSUS.

HOLDING:

The plaster-craft Christmas ornaments (sequence 4000 and 70000) are classifiable in subheading 9505.10.2500, HTSUS; the traditional mini village buildings (sequence 90000) are classifiable in subheading 9505.10.5020, HTSUS, both being free of duty (1996).

You are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office 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 take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings

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