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HQ 962287




March 3, 2000

CLA-2 RR:CR:GC 962287 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.85

Mr. Louis Nichole
Louis Nichole, Inc.
105 East 29th Street

New York, NY 10016

RE: Steel molded forms; NY D80867 affirmed.

Dear Mr. Nichole:

This is in reference to your letter, dated September 24, 1998, requesting reconsideration of New York Ruling Letter (NY) D80867, issued to you on August 6, 1998, by the Customs National Commodity Specialist Division, New York, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of steel molded frames. You submitted a copy of the book, “Christmas Decorating from Williamsburg,” and the pictures it contains, as evidence “of the basis for [y]our product.” Your letter and book were referred to this office for reply. We regret the delay in responding.

FACTS:

The articles at issue are green molded forms made of steel (“the steel molds”). The steel molds are used as the internal structure of decorations upon which plastic or metal extensions may be placed and to which vegetation, including dried fruits, fresh fruits, pine cones, and flowers may be attached. The steel molds come in a variety of shapes and may be used to create centerpieces, wreaths, statues, animal forms and mantelpieces. The primary channels of distribution are florists and the craft industry.

ISSUE:

Whether the steel molds are classifiable as “festive articles.”

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.

The HTSUS headings and subheadings under consideration are as follows:

7326 Other articles of iron or steel:

Forged or stamped, but not further worked:

7326.90 Other:

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:

9505.10.25 Other

Note 1(l) to Section XV, HTSUS, which covers heading 7326, provides that this section does not cover articles of chapter 95. Thus, if the steel molds are classifiable under heading 9505, then note 1(l), Section XV, precludes classification under heading 7326, and necessitates classification under chapter 95.

In NY D80867, Customs determined that the steel molds were provided for in subheading 7326.90.85. You claim that the articles are used for Christmas decorations and therefore, are provided for under heading 9505, as a “festive article.” We are of the opinion that these articles are complete articles of commerce and are classifiable according to GRI 1. If the steel molds are described respectively by both heading 7326 and heading 9505, consideration is also given to relevant section and chapter notes. We must first examine the article in relation to heading 9505, to determine whether it is described therein.

In Midwest of Cannon Falls, Inc., v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. Following Midwest, Customs will classify merchandise as a “festive article” in heading 9505, 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.

Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Informed Compliance Publication, “Classification of Festive Articles," 32 Cust. Bull. 2/3 (January 21, 1998), at page 177 ("IV. Additional Motifs, Symbols or Representations, A. Decorative Items").

In addition to the three-prong criteria listed above, the Court considered 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 (hereinafter Carborundum), for purely decorative items to determine whether the imported merchandise is of the "class or kind" of “festive articles.” Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin Informed Compliance Publication, dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the 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.

At issue here is whether the steel molds correspond to articles used in celebration of a particular holiday. A basic axiom of Customs law is that goods are classified in their condition as imported. In other words, we must determine if these steel molds, in their condition as imported, are recognized in that state as “festive articles.”

In considering the Midwest standards, the steel molds are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The steel molds are not automatically an accepted symbol for the recognized holiday of Christmas or any other holiday. The steel molds are, however, a complete article of commerce, specifically described at GRI 1, as an article of steel in heading 7326.

With respect to the general criteria set forth in Carborundum and further considered by the Court, we note that in terms of general physical characteristics, the steel molds have no functional or decorative aspects that indicate they are primarily used at a specific holiday. Rather, they can be used year-round. Further, the steel molds are not, without additional embellishment, decorative in nature. The steel molds do not contain any holly sprigs, bells, stars, fruit, dried flowers, pine cones, branches or other decorative elements that would be consistent with a festive article demonstrative of a relationship to Christmas. The purchaser of a steel mold, would have the expectation of being able to decorate it for any of a myriad of holidays, or for use throughout the entire year. Although, the channels of trade would be in stores selling decorative Christmas holiday articles, these articles are not sold solely for use during the Christmas season. The environment of sale is as a base for many floral or craft projects. The articles are not uniquely sold as part of a Christmas or particular holiday sales promotional effort.

The Carborundum factors taken together point to a conclusion that the articles are not within the class of “festive articles.” Moreover, the mere appearance of an article in a Christmas catalog is not sufficient to bring the article into the class of “festive articles,” especially where there is no way of determining how the steel molds will ultimately be used. In the present case, the appearance of the subject articles in this particular catalog is useful, insofar as it clearly demonstrates they are used on a multitude of different occasions and for a variety of purposes.

HOLDING:

The steel molds are not classifiable as “festive articles” under heading 9505, HTSUS. The steel molds are classifiable under subheading 7326.90.85, HTSUS, which provides for, “Other articles of iron or steel: Other: Other.”

NY D80867 is affirmed.

Sincerely,


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