CLA-2 RR:CR:GC 962453 JGB
Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman LLP
245 Park Ave.
New York, New York 10167-3397
RE: Christmas-Related Festive Articles; Midwest of Cannon Falls, Inc. v. United States
Dear Mr. Murphy:
This is in response to your letter of November 6, 1998, to the Customs National Commodity Specialist Division, New York, on behalf of Cardinal, Inc., in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on five prospective importations.
Your letter was referred to this office for reply. We regret the delay in providing this response.
FACTS:
The five articles considered in this decision are as follows:
Item G4379, the Snowman Cookie Plate, is described as a handpainted, embossed majolica-style snowman measuring 11 inches by 9 inches. It is painted to show a white snowman with a stocking cap, muffler and possibly holding a “snowman” cookie and a candy cane, all in an essentially two-dimensional representation. The article is utilitarian and designed to serve cookies or some kind of food product.
Item G4382, the Snowman Cookie Jar, is described as a handpainted, embossed majolica-style snowman measuring 8½ inches by 9½ by 9 inches high. This is a three-dimensional earthenware article with a hollow inside designed to accommodate cookies or similar food products. From the black and white photocopy provided, it appears to be two snowmen resting back to back to form the bulky body of the cookie jar. The top or head of the snowmen appears to be designed to be removed to permit access to the contents of the jar. The snowmen are decorated with top hat or stocking cap, and what may be colorful holiday-related images such as a candy cane and snowflakes.
Item G4381, the Snowman Candy Cane Holder, is described as a handpainted, embossed majolica-style Candy Cane Server, snowman measuring 13 inches by 4 inches by 6 inches, formed by two snowmen positioned at each end of the 13 inch “trough” in which candy canes would be placed. The snowmen are 6 inches in height, yet the “trough” separating the two snowmen appears to
be about an 1½ inch high.
Item G4377, the Snowman Pitcher and Mug Combo, also identified as the Solo Set, is described as a handpainted, embossed majolica-style snowman, consisting of a 10 ounce pot with a 9 ounce cup. This three-dimensional composite good consists of a snowman teapot with a handle and spout. The snowman’s head appears to form the removable top to the pot. The pot rests on a tea cup, also with handle, that together forms a complete snowman with the pot. There appear to be snowmen “feet” attached to the bottom of the cup. The two components are adapted one to the other and are mutually complementary, so that together they form a whole which would not normally be offered for sale in separate parts. The pot is designed to brew just one cup of tea and the cup will be used to drink the tea once brewed. Also, the pot can be placed on the top of the cup to help keep the tea warm after it has been poured.
Item G6312, the Snowman Candle Holder, is described as a handpainted, majolica-style snowman, a “Pillar Candle Holder or Candy Dish”, measuring 6½ inches by 5¼ inches by 4 inches high. The Christmas catalog states that the article holds a “pillar candle up to 4 inch diameter.” The catalog description suggests that the user could have the article hold candles or candy. The article appears to be designed in a shallow cup form with the snowman figure standing alongside where the candle would rest.
The articles are said to be associated with and will only be displayed and used during the Christmas season.
ISSUE:
Whether the snowman cookie plate, cookie jar, candy cane holder, teapot and mug combination, and candleholder are
classified in heading 9505, HTSUS, as festive articles, or elsewhere.
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. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
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.
In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Also, the merchandise presents the principal question of whether the articles are functional, and if so, do they present a recognized symbol of the three dimensional figure. All of the articles appear to be functional, whether they hold candles, candies, cookies, tea, or candy canes.
Items G4382, G4381, G4377, and G6312 are three dimensional representations of a snowman. In Headquarters Ruling Letter (HQ) 961839, dated March 9, 1999, we noted with respect to snowmen claimed to be festive, the following:
“At issue here is whether this snowman plaque, taken as a whole, corresponds to an article 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 holly decoration, red scarf and green mittens, that it has become part of the class of festive articles.”
In agreeing that the particular snowmen depicted were, indeed, representations of the class, we went on to state that:
the snowman is not automatically an accepted symbol for the recognized holiday of Christmas. *** 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 catalog is not sufficient to bring the article into the class of festive articles; however, such an appearance is useful evidence toward that end.
The standards and observations in HQ 961839, apply equally here. In view of the Carborundum evidence presented, and the type of decoration associated with the snowmen, these items have been demonstrated to be with the class of festive articles, classifiable in subheading 9505.10.50, HTSUS.
Item G4379, the Snowman Cookie Plate, while bearing an “accepted symbol” of the Christmas holiday has not thus been transformed into a festive article of heading 9505. The article is essentially a two-dimensional food serving platter which retains this identity, even after being painted with “snowman” designs and motifs. The article is decorated, to be sure; however, Customs views it not as a decorative article used to decorate (or ornament) a house during a festive holiday, but rather as a functional article which has the primary characteristic of being suitable for serving food. In contrast, Customs has regarded certain Christmas, Easter, and other holiday commemorative plates which were specifically not designed to serve food and which were intended to be displayed on a shelf, mantel, or wall to decorate a house, as festive articles of heading 9505. Accordingly, because Item G4379 is not eligible for classification in heading 9505, it is classified in heading 6912, specifically, subheading 6912.00.4810, HTSUS, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Other, Suitable for food or drink contact.”
HOLDING:
Items G4382, G4381, G4377, and G6312 are classified as festive articles under heading 9505, HTSUS, specifically, in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”
Item G4379, the cookie plate, is classified in heading 6912, specifically in subheading 6912.00.4810, HTSUS, the provision for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Other, Suitable for food or drink contact.”
Sincerely,
John Durant, Director
Commercial Rulings Division