# HQ 963198

September 26, 2000

**CLA-2 RR:CR:GC** 963198 TF

**CATEGORY:** Classification

**TARIFF NO.:** 9505.10.25

Port Director

U.S. Customs Service

40 South Gay Street

Baltimore, MD 21202

RE**: Protest 1303-99-100195; Light lawn ornaments; Heading 9505;
*Primal Lite, Inc. v. United States; Midwest of Cannon Falls v. United
States***

Dear Port Director:

The following is our decision regarding Protest 1303-99-100195 filed
against your classification decision, under the Harmonized Tariff
Schedule of the United States (HTSUS), of certain lighted lawn ornaments
and curtain light sets. The entry under protest was liquidated on June
25, 1999, and this protest was timely filed on July 29, 1999.

**FACTS:**

The specific articles under protest consist of fifteen styles of lighted
lawn ornaments comprised of wire frames which are covered by plastic
tubes of lights. These articles are supported by an attached stand which
is staked into the ground or mounted onto a house roof for display.

The sample photos depict various light sculptures in styles of doe,
buck, Santa Claus, snowman, sleigh, angel and North Pole. The samples
submitted for consideration are as follows:

1\. Lighted standing doe: item #49-424-N, approximately 30 inches in
height, and item #48-447-N, approximately 48 inches in height.

2\. Lighted standing bucks: consisting of item #49-425-N, approximately
30 inches in height and item #48-449-N, approximately 48 inches in
height.

3\. Lighted feeding doe: consisting of item #48-426-N, approximately 48
inches in height and item #48-427-N, approximately 28 inches in height.

4\. Lighted standing buck with a turned head, item #49-748-N,
approximately 48 inches in height.

5\. Lighted jumping bucks: consisting of item #49-434-N, approximately
30 inches in height, and item #48-448-N, approximately 48 inches in
height.

6\. Lighted snowman, item #49-550-N, approximately 48 inches in height.

7\. Santa Claus, item #49-554-N, approximately 48 inches in height.

8\. Lighted angel, item #49-555-N, approximately 48 inches in height.

9\. Lighted white sleighs: consisting of item numbers #48-652-N,
approximately 42 inches in height, and item#48-654-N, approximately 54
inches in height.

10\. Lighted North Pole, item \# 49-642-N, approximately 72 inches.

Protestant entered the merchandise on August 12, 1998, under subheading
9505.10.25, HTSUS, which provides for "other articles for Christmas
festivities and parts and accessories thereof". The entry was liquidated
under subheading 9405.40.80, which provides for other electric lamps and
lighted fittings.

Protestant claims that the articles are classifiable in subheading
9505.10.25, HTSUS. Protestant asserts that the entry classification is
inconsistent with Customs rulings, namely HQ 961101, dated July 28,
1999, which held a lighted Santa and his reindeer ornament and five
snowmen ornaments classifiable as festive articles in subheading
9505.10.25, HTSUS, along with the decision of [Midwest of Cannon Falls,
Inc. v. United States]{.underline}, 122 F.3d 1423 (Fed. Cir. 1997)
(*hereinafter* [Midwest]{.underline}).

Protestant argues that the subject ornaments are not garlands due to
their size and structure and they are incapable of being hung or draped.

**ISSUE:**

Whether the lawn ornaments are classifiable in heading 9505, HTSUS,
which provides for festive articles, or as other electric lamps and
lighting fittings of base metal under heading 9405, HTSUS, as
liquidated.

**LAW AND ANALYSIS**:

Merchandise is classifiable under the Harmonized Tariff Schedule of the
United States (HTSUS) in accordance with the General Rules of
Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall
be determined according to the terms of the headings and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, HTSUS, and if the headings or
notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS,
may be applied.

In interpreting the headings and subheadings, Customs looks to the
Harmonized Commodity Description and Coding System Explanatory Notes
(ENs). Although not legally binding, they provide a commentary on the
scope of each heading of the HTSUS. It is Customs practice to follow,
whenever possible, the terms of the ENs when interpreting the HTSUS.

The HTSUS headings under consideration are as follows:

> 9405 \[o\]ther electric lamps and lighting fittings:
>
> 9405.40.80 Other
>
> \* \* \* \*
>
> 9505 \[f\]estive, carnival or other entertainment articles, including
> magic tricks and practical joke articles; parts and accessories
> thereof
>
> 9505.10.25 Other Christmas ornaments
>
> \* \* \* \*

Festive, carnival or other entertainment articles are provided for in
heading 9505, HTSUS. In the instant case, the lighted sculptures, also
known as lawn ornaments, are generally used for decorating or adorning
the outside of a residence for the Christmas holidays. Although each
ornament incorporates a string of electric lights around its frame, they
are not electrical garlands because they are attached to a wire frame
and are not capable of being draped or hung, but rather are staked into
the ground or mounted onto the roof for display. The presence of lights
does not preclude the lighted sculptures from classification under
heading 9505, HTSUS. *See* HQ 962965, dated November 9, 1999
(classifying four electric light sculptures consisting of a decorative
plastic frame, illuminated with electrical wiring affixed to the frame
in subheading 9505.10.25, HTSUS.) Customs no longer considers lighted
sculptures to be similar to electric garlands because they are not short
lengths of lighting that are capable of hanging on trees. The Christmas
ornaments at issue may be classified in heading 9505 if they are found
to meet the \"class or kind\" criteria for festive articles as provided
for in [Midwest]{.underline}.

The Court in [Midwest]{.underline}, 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. It then applied its conclusions to 29 specific articles
to determine whether they were included within the scope of the class of
\"festive articles\". In general, merchandise is classifiable 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 the
> celebration of, and 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]{.underline}
decision, Customs is of the opinion that the Court has included within
the scope of \"festive articles,\" decorative household articles which
are representations of an accepted symbol for a recognized holiday.
*See* Customs' Informed Compliance Publication (ICP), \"Classification
of Festive Articles,\" 32 [Customs Bulletin]{.underline} 2/3, dated
January 21, 1998.

In addition to the criteria listed above, the Court considered the
general criteria for classification set forth in [United States v.
Carborundum Company]{.underline}, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373
(1976), cert. denied, 429 U.S. 979 (*hereinafter*
[Carborundum]{.underline}). Therefore, with respect to decorative
articles related to holidays and symbols not specifically recognized in
[Midwest]{.underline} or in the ICP, 32 Customs Bulletin 2/3 at p. 178
(\"IV. Additional Motifs, Symbols or Representations, B. Utilitarian
Items\"), Customs will also consider the general criteria set forth in
[Carborundum]{.underline} to determine whether a particular good belongs
to the class or kind "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.

In [Midwest]{.underline}, articles which contained motifs of Santa were
specifically recognized as festive within subheading 9505.10.25, HTSUS.
Therefore, of the instant articles, we accept the Santa Claus light
ornament within the [Midwest]{.underline} criteria.

Nine of the fifteen styles of articles in this protest are doe and buck
ornaments that are displayed in various poses of standing, feeding and
jumping. [Merriam-Webster's Collegiate Dictionary]{.underline}, 10th
Edition, defines the term "doe" as "the adult female of various mammals
(as a deer, rabbit or kangaroo) of which the male is called buck."
[Id.]{.underline} at 342. The noun version of the term 'buck' is defined
as "a male animal; esp.: a male deer or antelope." [Id.]{.underline} at
148. In this protest, we will accept the doe and buck ornaments as the
functional equivalent of reindeer.

Since the remaining articles (reindeer, angel, North Pole, sleigh and
snowman) are other motifs, we must examine whether they are within the
meaning of Christmas ornaments, that is, for a particular holiday within
the [Midwest]{.underline} criteria. We turn to the
[Carborundum]{.underline} factors, as the court in [Midwest]{.underline}
did, to determine whether these items are within the class or kind of
Christmas ornaments, which is principally used during the holiday season
for the specific purpose of decorating or ornamenting the home or
Christmas tree.

With respect to the general criteria of [Carborundum]{.underline}
applied to this case, we note that in terms of the general physical
characteristics, the subject ornaments have no functional aspects and
are exclusively decorative. The ultimate purchaser would have the
expectation of using the article to decorate the outside of their home
during the day and night hours of the holiday season. The channels of
trade for this type of merchandise would be in stores selling decorative
seasonal Christmas articles for the home; however, these stores would
also typically sell a variety of other home decorative articles. The
environment of the sale appears to be part of a Christmas or holiday
sales promotional effort since these items are advertised and grouped in
the photo with other seasonal Christmas-related items such as the Santa
Claus ornament. The recognition in the trade apparently would be as
Christmas articles.

We find the instant reindeer, snowman, angel, sleigh and North Pole
sculptures to be of a class or kind of other Christmas ornaments which
are bought to decorate the home or surroundings during the Christmas
season. All of the instant articles appear to be within the class of
other decorative Christmas ornaments that are bought, sold and used
during the Christmas season.

However, with respect to the grouping context of the instant articles,
we noted in HQ 961839, dated March 9, 1999, the following about snowman
plaques:

> \"not all \[all reindeer, snowman, angels, sleighs and North Pole
> ornaments\] are automatically festive, nor will the presence of..other
> Christmas-related images automatically qualify the article\[s\] for
> classification as a festive article. This is so because the images may
> appear with articles that are inconsistent with festive use. Likewise,
> the mere appearance of article\[s\] in a Christmas catalog is not
> sufficient to bring the article into the class of festive articles;
> however, such an appearance is useful evidence toward the end.

This same standard and observation in HQ 961839 applies equally to the
instant reindeer, snowman, angel, sleigh and North Pole sculptures. The
[Carborundum]{.underline} factors taken together lead to the conclusion
that these sculptures are within the same class of merchandise
principally, if not exclusively, used to decorate the home during the
Christmas holiday. The instant ornaments which decorate a lawn,
therefore, qualify as festive articles of heading 9505, specifically
subheading 9505.10.25, HTSUS.

**HOLDING:**

The light sculptures are classifiable as festive articles in subheading
9505.10.25, HTSUS, which provides for \"\[f\]estive, carnival or other
entertainment articles\...parts and accessories thereof; \[a\]rticles
for Christmas festivities and part and accessories thereof:
\[c\]hristmas ornaments: \[o\]ther: \[o\]ther.\"

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, 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 the decision.

Sixty days from the date of the decision the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

> Sincerely,
>
> John Durant, Director
>
> Commercial Rulings Division