March 12, 2009 CBP Bulletin Notice on Classification of Certain Light Sculptures

Proposed revocation and modification of rulings; proposed revocation of treatment. CBP is proposing to revoke one ruling and modify one ruling on the classification of certain light sculptures. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by April 11, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Light sculptures. The merchandise at issue is light sculptures. The items are identified as the "Glistening Snowman" (item 663613), "Grapevine Angel" (item 663620), "Standing Reindeer Light Sculpture" (item 663609) (Standing Reindeer), "Feeding Reindeer Light Sculpture" (item 663610) (Feeding Reindeer) and "Snowman Family Light Sculpture Set" (item 663619) (Snowman Family Set) which are three-dimensional representations of deer, snowmen or angels composed of a pre-assembled metal frame covered with a string of lights and may include metal stakes.

CBP is proposing to issue HQ H020852in order to revoke NY N011802, and modify NY N012101, and determine that the light sculptures are classified under HTS 9505.10.25 as articles of Christmas festivities rather than under HTS 9405.40.60 as other electric lamps and lighting fittings.

CBP proposes this change as a correction based on the Explanatory Notes (ENs) and prior court cases and rulings. Note 1(t) to HTS Chapter 95 states that chapter 95 does not cover "electric garlands of all kinds (heading 9405)." The ENs to heading 9505 provide that the heading includes: "Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include(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."

CBP now proposes that although all the subject light sculptures incorporate a string of electric lights around a frame, the light sculptures are not electric garlands. The articles at issue here form three-dimensional shapes. Such light sculptures are not similar to electric garlands.

In Midwest of Cannon Falls v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (Midwest), the court discussed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles." In general, merchandise is classified as a festive article in heading 9505 when the article, as a whole:

1. Is not predominantly 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.

In addition to the criteria listed above, the Midwest 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 (Carborundum) to determine the principal use of the articles at issue therein. CBP will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind "festive articles".

The Carborundum 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. The ultimate purchaser of the instant light sculptures in the shapes of reindeer, angels, and snowmen would have the expectation of using the articles to decorate the outside of their home during the holiday season.

The subject light sculptures satisfy the above-referenced standard in the sense that the Carborundum factors, taken together, lead to the conclusion that the subject reindeer, snowman and angel light sculptures are within the same class of merchandise principally used during Christmas. In addition, CBP has previously ruled that certain light sculptures utilized during Christmas are recognized symbols of the Christmas holiday and are classifiable in heading 9505. (See bulletin for ruling numbers.)

CBP now proposes that by application of GRI 1, the subject light sculptures are classified in subheading 9505.10.25 which provides for: "Festive, carnival or other entertainment articles, including magic tricks and other practical joke articles . . .: Christmas ornaments: other: other."

Proposed: 9505.10.25, duty-free; Current: 9405.40.60, 6%

March 12, 2009 CBP Bulletin (Vol. 43, No. 11) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/