HQ 960996

July 23, 1998

CLA-2 RR:CR:GC 960996 MMC

CATEGORY: Classification

TARIFF NO.: 9505.10.25

Mr. John M. Peterson

Neville, Peterson & Williams

80 Broad Street

New York, New York 10004

RE: \"Christmas Magic Mainstreet\" table-top musical decoration;

NYRL B88074

Dear Mr. Peterson:

This is in response to your October 1, 1997, letter on

behalf of Target Stores Division of Dayton Hudson, requesting

reconsideration of New York Ruling Letter (NYRL) B88074 dated

August 13, 1997, which classified an article identified as

\"Christmas Magic Mainstreet\" under subheading 3926.40.0000 of the

Harmonized Tariff Schedule of the United States (HTSUS) which

provides, in pertinent part, for other plastic articles.

FACTS:

The \"Christmas Magic Mainstreet\" is an electrically-operated

scale model replica of a winter street scene. The article is

composed of a rectangular plastic base measuring approximately 26

inches long and 11 inches wide. A plaque on the front of the

base contains the words \"The Magic of Mainstreet.\" A long oval

chain-operated track powered by an AC electric motor and an

electronic music box which plays 12 different Christmas songs are

contained within the base. On top of the base are openings for

motorized track pegs on which plastic figurines are placed,

openings with electrical contacts for the insertion of figurines

along the front of the base and several slots and openings for

the insertion of scale-model buildings, figurines and trees.

Among the scenes depicted are the selling of Christmas trees,

street lamps with holiday wreaths, strung Christmas lights, a

sleigh, roasted chestnuts, buildings festooned with wreaths and

Christmas decorations, carolers, a May Pole and a depiction of

Santa Claus.

When electrically activated, the lights in the street lamps

and strung lights illuminate the decoration. The sleigh

(attached to the chain) appears to be pulled by a horse. The

Santa Claus figure appears from behind the shuttered windows of a

building. The May Pole rotates while the music box plays a

variety of Christmas carols. The following statements appear on

the box in which the article is sold:

Holiday spirit brings this tiny Christmas village to life!

Each animated character in the Magic of Mainstreet has been

carefully designed to represent the warm and special

feelings of an old town Christmas! One mode animates

Mainstreet with constant motion and music; another plays a

Christmas melody every other minute as the sleight passes

by.

The article is designed to be placed on a table-top or counter

and serve as a decoration. According to the importer, it sells

the articles seasonally in its Department 51 \"Trim the Tree

Shop.\"

ISSUE:

Whether \"Christmas Magic Mainstreet\" is classifiable as a

festive article.

LAW AND ANALYSIS:

In Midwest of Cannon Falls, Inc. v. United States, Court No.

92-03-00206, 1996 Ct. Int\'l Trade LEXIS 15 (Ct. Int\'l. Trade,

January 18, 1996), and Court No. 96-1271, 96-1279, 1997 U.S. App.

LEXIS 21617 (Fed. Cir. August 14, 1997) (hereinafter Midwest),

the Court addressed the scope of heading 9505, HTSUS,

specifically, the class or kind \"festive articles.\" It then

applied its conclusions to 29 specific articles to determine

whether they were included within the scope of the class \"festive

articles.\" According to the court, all of the articles were

classifiable as \"festive.\" This application provided new

guidelines for the classification of \"festive articles.\" In

general, merchandise is classifiable in heading 9505, HTSUS, as a

\"festive article\" 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

Additionally, the Court gave consideration to 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). Therefore, for those articles

involving holidays, and symbols not specifically recognized in

Midwest, in addition to the above criteria, Customs will consider the

general criteria set forth in Carborundum in determining whether the

particular article is of a class or kind of good known as \"festive

articles.\" Those criteria include: the general physical

characteristics of the article, 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.

The \"Christmas Magic Mainstreet\" has no precious or semi-precious
stones, metals or metal clad with precious metal. It

functions primarily as a decoration used in celebration of and for

entertainment for a particular holiday; Christmas.

Customs has always recognized Christmas as a festive holiday for

tariff purposes. Furthermore, we recognize that table-top mechanical

and musical decorations are, in general, articles which may be of a

class or kind of decoration considered a \"festive article\" for tariff

purposes. Application of the Carborundum factors will determine

whether a particular table-top mechanical and musical decoration

belongs to the class.

Application of the Carborundum factors to this particular table-top
mechanical and musical decoration indicates that the \"Christmas

Magic Mainstreet\" falls within the scope of the class, \"festive

articles.\" The physical appearance of the decoration, namely its

wreaths, carolers, songs and Santa Claus indicate its use with the

Christmas holiday. Furthermore, both the environment of sale, in a

\"Tree Trimming Shop\" together with the various statements on the box

in which it is sold, create an expectation for the ultimate purchaser

that the decoration is used only during the Christmas season.

Finally, it is used in the same manner as merchandise which defines

the class, in that it is a decoration which incorporates various

symbols of a recognized holiday season.

Based on this analysis, Customs is of the opinion that the

expectation of the ultimate purchaser, environment of sale, use in

the same manner as merchandise which defines the class and

recognition in the trade of this use, all indicate that the

\"Christmas Magic Mainstreet\" is principally used as a \"festive

article.\" Therefore, it is classifiable under heading 9505,

specifically, subheading 9505.10.25, HTSUS, as \"Festive, carnival or

other entertainment articles, including magic tricks and practical

joke articles; parts and accessories thereof: \[c\]hristmas ornaments:

\[o\]ther.\"

Section 152.16 of the Customs Regulations (19 CFR §152.16),

states, in pertinent part, that:

§ 152.16 Judicial changes in classification

The following procedures apply to changes in classification made

by decisions of either the United States Court of International

Trade or the United States Court of Appeals for the Federal

Circuit\...:

\(a\) \* \* \*

\(b\) \* \* \*

\(c\) \* \* \*

\(d\) \* \* \*

\(e\) Other decisions adverse to Government. Unless the

Commissioner of Customs otherwise directs, the principles

of any court decision adverse to the Government\...shall be

applied to unliquidated entries and protested entries which

have not been denied in whole or in part and in which the

same issue is involved as soon as the time within which an

application for a rehearing or review may be filed has

expired without such application having been made.

As the judicial decision in Midwest was adverse to the government,

and had a direct effect on the classification of merchandise which

was the subject of NYRL B88074, that ruling was effectively revoked

by Midwest. Since NYRL B88074 has already been effectively revoked

by judicial decision, this is not a proposed interpretative ruling or

decision which would require publication in the Customs Bulletin

under 19 U.S.C. 1625(c). Rather, this letter is a new, prospective

ruling which applies the findings in Midwest to the merchandise ruled

upon in NYRL B88074. As such it governs any unliquidated or

protested entries to which Midwest applies.

HOLDING:

The \"Christmas Magic Mainstreet\" is classifiable under

subheading 9505.10.25, HTSUS, as \"Festive, carnival or other

entertainment articles, including magic tricks and practical joke

articles; parts and accessories thereof: \[c\]hristmas ornaments:

\[o\]ther.\" The applicable rate of duty is free.

Since NYRL B88074 has already been effectively revoked by

judicial decision, this is not a proposed interpretative ruling or

decision which would require publication in the Customs Bulletin

under 19 U.S.C. 1625(c). Rather, this letter is a new, prospective

ruling which applies the findings in Midwest to the merchandise ruled

upon in NYRL B88074. As such it governs any unliquidated or

protested entries to which Midwest applies.

Sincerely,

John Durant, Director Commercial Rulings Division