CLA-2 CO:R:C:G 087969 STB
Mr. James J. Jazwinski
Polean Foods, Inc.
6 Split Oak Drive
East Norwich, New York 11732
RE: Hand painted, decorated eggs
Dear Mr. Jazwinski:
This is in response to your inquiry of August 8, 1990,
concerning the classification of two varieties of hand painted,
decorated eggs to be imported from Poland. Pictures of one item
of each variety were included with your request.
FACTS:
The subject merchandise consists of two varieties of eggs
which are known in the trade as "Pysanka." "Pysanka" is
described in your inquiry as "a painted decorated egg, its a
traditional Eastern European Easter Egg." One variety is
composed of a natural egg shell from either a domestic chicken or
domestic goose. The egg is emptied of the yolk and the white and
then painted with a decorative design. The other variety is
constructed of wood which is carved or otherwise worked into an
egg shape, then painted with a decorative design. A ribbon is
sometimes attached to both varieties to allow hanging of the
eggs. In telephone conversations of October 24 and 31, 1990,
you informed this office that these eggs will be marketed and
sold primarily as Easter items, but may also be sold during other
holiday periods, including Christmas. You stated that it is the
intention of the importer that, during the Easter Season, the
subject merchandise be displayed in stores with other Easter
items and sold as such. You further stated that it is likely
that the eggs will be manufactured by several different companies
and will sell for approximately $5.00 each.
ISSUE:
What is the proper classification of the subject
merchandise?
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LAW AND ANALYSIS:
The General Rules of Intepretation (GRI's) set forth the
legal framework in which merchandise is to be classified under
the Harmonized Tariff Schedule of the United States (HTSUSA).
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's taken in order.
The headings at issue in this case are as follows:
(a) 9505, HTSUSA, Festive, carnival or other
entertainment articles, including magic tricks
and practical joke articles; parts and accessories
thereof...
(b) 9701, HTSUSA, Paintings, drawings and pastels,
executed entirely by hand, other than drawings
of heading 4906 and other than hand-painted or
hand-decorated manufactured articles...
(c) 9601, HTSUSA, Worked ivory, bone, tortoise-shell,
horn, antlers, coral, mother-of-pearl and other
animal carving material, and articles of these
materials...[and]
(d) 4420, HTSUSA, Wood marquetry and inlaid wood;
caskets and cases for jewelry or cutlery and similar
articles, of wood; statuettes and other ornaments, of
wood;....
Heading 9505, provides, in pertinent part, for "[f]estive,
carnival or other entertainment articles." The Explanatory Notes
offer guidance in the interpretation of the headings. The
Explanatory Note to Heading 9505 indicates that the heading
covers:
(A) Festive, carnival or other entertainment articles
which in view of their intended use are generally made
of non-durable material. They include:
(1) Decorations such as festoons, garlands,
Chinese lanterns, etc., as well as various
decorative articles made of paper, metal foil,
glass fibre, etc., for Christmas trees (e.g.,
tinsel, stars, icicles), artificial snow, coloured
balls, bells, lanterns, etc. Cake and other
decorations (e.g., animals, flags) which are
traditionally associated with a particular
festival are also classified here.
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(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs.
Articles classifiable in Heading 9505, HTSUSA, tend to have no
function other than decoration. Heading 9505 is generally
regarded as a use provision.
It is Customs position that Heading 9505, HTSUSA, generally
covers articles which by their shape, design, and ornamental
characteristics fall into that class of goods which are
appropriately used in connection with a recognized festive
holiday. While utilitarian articles may be classifiable in
Heading 9505, HTSUSA, they must, as a class, be holiday related.
It is our determination that the subject decorated eggs,
both wood and natural shell, are properly classifiable in
Heading 9505, HTSUSA. As noted in Headquarters Ruling Letter
(HRL) 084050, dated July 11, 1989, decorated eggs have long been
recognized as an important part of the Easter celebration.
Customs has also recognized that decorated eggs are a holiday
related class of item; in the above ruling letter a piece of
styrofoam in the shape of an egg, wrapped with a colored rope,
was classified in Heading 9505. In the Encyclopedia Americana,
Volume 9, (1980) at page 561, the following is noted:
Eggs, for example, are central to a variety
of Easter customs. A number of explanations have
been suggested. Formerly, eggs were forbidden during
the Lenten fast but could again be eaten at Easter.
Thus, decorated eggs could symbolize the end of the
penitential season and the beginning of joyful
celebration. Also, eggs as traditional symbols of
life and creation, suggest the Resurrection. Likewise,
eggs, colored like the rays of the returning sun or
the northern lights, symbolize the return of spring.
In any case, it has become customary in many places
to decorate and exchange eggs at Easter....
These items will be marketed, sold and most likely used as Easter
and other holiday display items. They have little use other than
as decorative items; some of them will have ribbons attached to
increase their decorative value by allowing hanging and enhancing
their appearance. It is not likely that they will be displayed
on a year-round basis. The eggs that will be constructed of
decorated empty shell will basically be non-durable items such as
is described in the Explanatory Note to Heading 9505.
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These eggs may also qualify for classification in other
headings. When goods are prima facie classifiable under two or
more headings, we must refer to GRI 3. GRI 3 states, in
pertinent part:
When by application of rule 2(b) or for any
other reason, goods are, prima facie,
classifiable under two or more headings,
classification shall be effected as follows:
(a) The heading which provides the most
specific description shall be preferred to
headings providing a more general description.
In the case of the eggs constructed of wood, the provision
competing with Heading 9505, HTSUSA, is Heading 4420, HTSUSA,
which provides, inter alia, for "...statuettes and other
ornaments, of wood." In the case of the natural shell eggs the
only possible competing provision would be Heading 9601, HTSUSA,
which provides inter alia, for "animal carving material, and
articles of these materials...." Both of these possible
alternatives to the festive article provision, a use provision,
are eo nomine provisions. As between eo nomine and use
provisions, the latter is generally regarded as being the more
specific provision because it is usually the most difficult to
satisfy.
Another possible classification of the subject merchandise
that can be discounted is classification under Heading 9701,
HTSUSA, which applies to "Paintings, drawings and pastels,
executed entirely by hand...." HRL 086227, dated April 18, 1990,
states that "In order for an article to be classified in Chapter
97, HTSUSA, it must meet the standard for "work of art." HRL
086047, dated February 28, 1990 and HRL 087170, dated September
14, 1990, citing various court decisions, discuss the factors
that are necessary for classification as a "work of art" under
chapter 97, HTSUSA. According to the relevant factors, these
items do not qualify for classification under this heading; they
are not created by renowned artists and there is no evidence that
they have been or will be displayed in art galleries as objects
of fine art. The fact that the items do not meet the standards
for "works of art" is further evidenced by the low price,
approximately $5.00 each, that they will sell for. The eggs are
specifically excluded by the language of the heading itself,
which excludes "hand-painted or hand-decorated manufactured
articles." Moreover, as with the other competing provisions,
Heading 9701, HTSUSA, is an eo nomine provision and is thus less
specific than Heading 9505, HTSUSA.
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HOLDING:
The two decorated eggs are properly classifiable under
subheading 9505.90.60, HTSUSA, as festive, carnival or other
entertainment articles, other, other. The applicable duty rate
is 3.1% ad valorem. The instant merchandise may be entitled to
free entry under the Generalized System of Preferences (GSP), if
otherwise qualified.
Sincerely,
John Durant, Director
Commercial Rulings Division