CLA-2 RR:CR:GC 961930 JGB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: Plastic and Paper Pulp Snowman Figures; “Midwest of Cannon Falls, Inc. v. United States”
Dear Mr. Simon:
This is in response to your letter of June 9, 1998, on behalf of Russ Berrie and Company, Inc.(“Russ Berrie”), and Midwest of Cannon Falls, Inc.(“Midwest”), in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on two plastic and two paper pulp snowman figures. The items are to be manufactured in China. We discussed the classification of these articles with you at a meeting at Headquarters on June 10, 1999. We regret the delay in responding.
FACTS:
The first two snowmen are imported by Midwest and bear the name “Snowfolk Friends”, identified as item #21348-3. The snowmen measure 4¼ inches in height by 3¾ inches wide by 2¾ inches deep. Both snowmen are made from two white “snowballs” of graduated size. One snowman is wearing bib overalls and has two branches representing arms protruding from either side of his body. Hung on the right arm is an evergreen wreath. A satchel containing holly sprigs and berries hangs from the other arm. The snowman wears a scarf and hat, said to be adorned with green Christmas leaves and berries. The face is decorated with a twig nose. The other snowman wears a scarf and green Santa hat, holds a Christmas tree with its left hand and a shovel bearing the words “SNOW TIME” in its right hand. The front of the snowman is decorated with two buttons and the face is constructed with simulated coal. The figures are constructed principally of paper pulp with ornaments of polyvinyl chloride.
The remaining two snowmen are imported by Russ Berrie and bear item numbers 16851 and 16852. They are composed of sculptstone of which the principal and essential ingredient is polyester plastic material. Item 16851 is a snowman 3¾ inches in height, wearing a green scarf with white polka dots and a long, striped hat with a white ball at the end. The snowman is holding a metal wire in both hands, attached to which is a small bell and two gold five-pointed stars. On the body are three hearts representing buttons and a Christmas tree. The face is decorated with a carrot nose and painted-on eyes, nose and dimples.
Item 16852 is a snowman measuring approximately 6¾ inches in height. It wears a long green scarf decorated in a green and red checkerboard pattern. It wears a red top hat decorated with white dots and a brown and white band. A branch which appears to extend through the upper torso serves as its arms. On the right “arm” hangs a golden snowflake and on its left arm sits a red bird on a sprig of holly leaves and berries. The front of the snowman is decorated with small stars representing buttons. The face is decorated with a carrot nose and painted-on eyes, nose and dimples. In all the figures, the predominant colors are various combinations of white, red, green, and black.
The articles from both importers are marketed to and sold through the importers’ distributors for ultimate sale in small to mid-sized retail shops during the Christmas selling season. The articles appear with other Christmas-related items in the importers’ Christmas catalogues.
ISSUE:
Whether the paper pulp Snowfolk Friends and plastic Russ Berrie Snowman Figures are classified, respectively, as other articles of paper pulp in heading 4823, HTSUS, and as other articles of plastics in heading 3926, HTSUS, or in heading 9505, HTSUS, 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.
Heading 3926, HTSUS, provides for other articles of plastics and articles of other materials of heading 3901 to 3914. Statuettes and other ornamental articles of plastics are provided for in subheading 3926.40.00, HTSUS. The Russ Berrie articles are potentially classified here.
Heading 4823, HTSUS, provides for other articles of paper pulp. Ornamental articles of paper pulp such as those under consideration here would be provided for in subheading 4823.90.10, HTSUS. The Snowfolk Friends articles are potentially classified here.
Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10.25, HTSUS. Although the Snowfolk Friends and Russ Berrie Snowman Figures are described respectively by headings 4823 and heading 3926 and by heading 9505, consideration must be given to relevant section and chapter notes. Note 2(v) to chapter 39, HTSUS, which covers heading 3926, provides that this chapter does not cover articles of chapter 95. Similarly, note 1(p) to chapter 48, HTSUS, which covers heading 4823, provides that this chapter does not cover articles of chapter 95. Thus, if the Snowfolk Friends and Russ Berrie Snowman Figures are classifiable under heading 9505, then note 2(v) to chapter 39 or note 1(p) to chapter 48, as appropriate, precludes classification under heading 3926 or heading 4823 and necessitates classification under chapter 95.
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, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, 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 Customs Bulletin, Volume 32, Numbers 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, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not
specifically recognized in Midwest or in the Customs Bulletin 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 “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 plastic and paper pulp snowman figures, taken as a whole, correspond to articles used in celebration of a particular holiday. In other words, is the ordinary snowman which is commonly associated with winter, so embellished here with a Christmas tree or wreath, a holly decoration, red and green scarf or a red hat, that it has become part of the class of festive articles.
In considering the Midwest standards, the plastic and paper pulp snowman figures are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The snowman is not automatically an accepted symbol for the recognized holiday of Christmas. However, 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 plastic snowman figures have no functional aspects and are only decorative. The holly sprigs, bells, stars and other decorative elements, as well as color choices suggest and are consistent with a Christmas relationship. The ultimate purchaser would have the expectation of using the articles to decorate. The channels of trade would be in stores selling decorative Christmas articles principally during the Christmas season. The environment of the sale appears to be as part of a Christmas or holiday sales promotional effort. Two of the items are coupled with other Christmas-related items such as Christmas ceramic figurines and Santa candy bowls appropriate to the season. The recognition in the trade would apparently be as Christmas articles, in that the catalog pages provided are under the title “Christmas 98” in the case of the Russ Berrie figures and the 1998 Christmas catalogue in the case of Midwest.
The Carborundum factors taken together point to a conclusion that the article is within the class of festive articles. We note that not all snowmen are automatically festive, nor will the presence of holly, or other Christmas-related images automatically qualify the article 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 an article in a Christmas catalogue is not sufficient to bring the article into the class of festive articles. However, such an appearance is useful evidence toward that end. See Headquarters Ruling Letter 961839, March 9, 1999.
HOLDING:
The Snowfolk Friends and Russ Berrie Snowman Figures are therefore classified as festive articles under heading 9505, HTSUS, specifically in subheading 9505.10.25, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division