“Earthenware Snowman Plaque” Festive Article; “Midwest of Cannon Falls, Inc. v. United States”

HQ 961932 June 17, 1999 CLA-2 RR:CR:GC 961932 JGB CATEGORY: Classification TARIFF NO.: 9505.10.25 Mr. Joel K. Simon Serko & Simon One World Trade Center, Suite 3371 New York, New York 10048 RE: “Earthenware Snowman Plaque” Festive Article; “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., in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on a Earthenware Snowman Plaque. The item is to be manufactured in China. We discussed the classification of this article with you at a meeting at Headquarters on June 10, 1999. We regret the delay in responding. FACTS: The Earthenware Snowman Plaque, Item #8415, is designed to be hung on the wall. The item measures approximately 9-3/4 inches in height, including the metal holly leaf and berry hanger, by approximately 6-1/4 inches in width. It depicts in bas-relief a snowman wearing a black hat, red scarf, and green gloves. The snowman has an orange carrot nose and green buttons down its front. The plaque is bordered in blue and has a metal hanger that extends about 2-3/4 inches from the top, incorporating a decorated metal pair of holly leaves with a cluster of three red berries. The holly leaf portion is about 4 inches wide. The predominant colors are white, red, green, blue and black. The article is marketed to and sold through the importer’s distributors for ultimate sale in small to mid-sized retail shops during the Christmas selling season. The article appears with other Christmas related items in the importer’s Christmas catalog. ISSUE: Whether the Earthenware Snowman Plaque is classified in heading 6913, HTSUS, as statuettes or other ornamental ceramic articles 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. 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. Heading 6913, HTSUS, provides for statuettes and other ornamental ceramic articles. Articles of other than porcelain and china, e.g., earthenware, are provided for in subheading 6913.90.50, HTSUS. 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 Earthenware Snowman Plaque is described by both heading 6913 and heading 9505, consideration must be given to relevant section and chapter notes. Note 2(k) to chapter 69, HTSUS, which covers heading 6913, provides that this chapter does not cover articles of chapter 95. Thus, if the Earthenware Snowman Plaque is classifiable under heading 9505, then Note 2(k) to chapter 69 precludes classification under heading 6913 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 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 considering the Midwest standards, the Earthenware Snowman Plaque is 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 Earthenware Snowman Plaque has no functional aspects and is only decorative. The holly sprigs, decorative elements, and color choices suggest and are consistent with a Christmas relationship. The ultimate purchaser would have the expectation of using the article 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. The item is 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 a Christmas article, in that the catalog pages provided are under the title “Christmas 98.” 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. See Headquarters Rulings Letter 961839, March 9, 1999. HOLDING: The “Earthenware Snowman Plaque” is therefore classified as a festive article 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