Ruling of the Week 2015.15: The Festive Penguin

Several alert readers have pointed me in the direction of the May 6, 2015 Customs Bulletin & Decisions in which U.S. Customs and Border Protection proposes to revoke NY N035321 (Aug. 18, 2008). In that ruling, Customs considered the classification of a 14-inch plastic penguin made of red, orange, green and clear beads. To make the item even more impressive, it is equipped with light bulbs that run through the frame and it wears a "Santa hat" made of lights. Stop there for a moment. As with my lighted tie, I have been unable to find a picture of this particular item. Note to anonymous law clerk who found me a representative tie: treat this as a challenge. Find me a picture, please.

Customs originally classified this item in Heading 3926 as an other article of plastic. The importer asked for reconsideration of that decision and asserted that it is properly classified as a festive article in heading 9505. As you probably know, the scope of heading 9505 has been the subject of a lot of litigation. This is primarily because goods classified in that heading are duty free and also because most things can be festive if seen in the right context. My kid's dirty soccer socks can be strung from the mantel to celebrate World Cup season.

In a tariff sense, festive articles includes items traditionally used at Christmas (e.g., artificial Christmas trees, nativity scenes, Christmas nutcrackers, and yule logs). More generally, the item must be closely associated with a festive occasion and must be used or displayed principally during that occasion. Seeing it on display at other times should be "aberrant."

"Other articles of plastic," on the other hand, is a basket provision. That means goods will not be classified in 3926 if they are specified or included elsewhere. So, if 9505 fits, 3926 fails.

So what about our penguin? Unlike a reindeer, there is no recognizable connection between a penguin and Christmas. But, in this case, the penguin has donned a "Santa hat." The hat is an article traditionally associated with Christmas and the festive Christmas season. So much so that CBP believes that the presence of the hat makes the display of this penguin aberrant outside of the Christmas season. This penguin is not a general decoration, it is a Christmas decoration. As such, it should be classified in 9505.10.25.

That's a win for the importer, and that is good enough for me.

I continue to believe that the test for festive articles related to Christmas, Easter, and other Christian holidays is too subjective. I have previously proposed a more scientific test. I still think it makes sense.

Also, this is a great opportunity for tariff engineering. I propose adding a Santa hat to basically anything that is dutiable. That doesn't seem like an artifice or disguise, does it?

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