CLA-2 RR:CR:GC 961158 JRS
Ms. Lorianne Aldinger
Import Manager
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105
RE: “Easter Tree" with Ornaments; Festive Article; Midwest of Cannon Falls, Inc.
Dear Ms. Aldinger:
This is in response to your letter of November 10, 1997, to the Director, Customs National Commodity Specialist Division, New York, requesting a ruling on an "Easter Tree" with 18 ornaments, item # 980081, made in China. Your letter was referred to this office for reply. We are in receipt of the additional information you submitted on September 22, 1998. A sample was provided. We regret the delay.
FACTS:
Item # 980081 is a leafless "tree" constructed from metal wire which has been wrapped with colored paper. The trunk, which measures 12½" in height, is formed by a braiding of the wires at the base of the branches. The tree trunk is pink in color with blue, green, purple, pink and yellow branches of straight and curlicue design.
The tree is permanently affixed to an off-white porcelain base (approximately 3½" length x 4" height x 2½" depth) filled with green paper "grass." The base is decorated, in bas relief, with a white rabbit eating a carrot while sitting directly above a light blue banner with the word "EASTER" surrounded by a variety of colored flowers. The assortment of 18 hand-painted wooden ornaments (approximately 1½ to 2" in height and ½-1" in width) consists of decorative eggs; white rabbits with clothes; singing birds, one sitting on an egg and one on a flower pot; a carrot; a yellow "snowman" bird with a top hat; and a green oval "wreath" decorated with pastel flowers. Each of the small wooden ornaments has a loop of sewing thread which permits suspension from the tree branches. The ornaments and the tree are packaged in a box and sold together as one unit.
ISSUE:
Whether the subject "Easter Tree" with ornaments is classifiable in heading 9505, HTSUS, as a festive article.
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.
Initially, the "Easter tree" appears to be described by two headings. Heading 9505, HTSUS, provides for, among other things, festive, carnival, or other entertainment articles. Heading 6702, HTSUS, provides for, among other things, artificial foliage. Note 1(e) to Chapter 67, HTSUS, states in part that "[t]his chapter does not cover: [t]oys, sports equipment and carnival articles (chapter 95); ..." If this particular "Easter tree" is classified in heading 9505 as a "festive article," it is excluded from classification in heading 6702.
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 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind of merchandise termed “festive articles.” It then applied its conclusions to 27 of the 29 specific articles to determine whether they were included within the scope of the class of "festive articles."
There were no artificial foliage trees at issue in Midwest. The Midwest decision, however, provided new guidelines for classification of goods in the heading. In general, merchandise is classifiable as a festive article under Midwest 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. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998. The Midwest case recognized that Easter was a festive occasion (holiday).
In addition to the three-prong 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) for purely decorative items to determine whether the imported merchandise is of the "class or kind" festive articles. See ICP, "Classification of Festive Articles," 32 Cust. Bull. 2/3 at page 177 ("IV. Additional Motifs, Symbols or Representations, A. Decorative Items"). 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.
We note that prior to Midwest, it was Customs position that an “Easter tree” per se, unlike decorative Easter eggs, was not traditionally associated with the particular festival of Easter, and as such, Customs had consistently classified the tree itself as an article in heading 6702, HTSUS, the provision for artificial foliage. See, HQ 959100 (April 21, 1997); HQ 958940 (November 13, 1996) affirming HQ 958411 (January 31, 1996); HQ 957516 (June 23, 1995); and HQ 957312 (May 31, 1995). After Midwest, our opinion remains unchanged in that an undecorated wire leafless tree, by itself, may not be considered a "festive article" unless the tree and its stand belong to the class or kind of articles used in decoration for a recognized festive holiday. This decision is made on a case-by-case analysis.
However, we note for the two items that were not appealed to the Court of Appeals for the Federal Circuit (that is, item #11, a terra cotta turkey container and item #12, an earthenware rabbit with carrot), the CIT found that they were not "festive" articles because: "...[a]though all of the items feature animals that are associated with a particular holiday or season, the items are not so peculiarly stylized so as to limit their use to that holiday." CIT Slip Op. 96-19 at page 19. The CIT upheld the classification under heading 6913 as statuettes and other ornamental ceramic articles.
We will now consider the three-prong criteria of Midwest. The wire tree and its base with the assortment of decorated ornaments meet the first two Midwest prongs of (1) not being made of predominately precious or semiprecious stones, metal or metal clad with precious metal, and (2) of functioning primarily as a decoration used in celebration of the Easter holiday. Unlike plain artificial foliage trees of heading 6702, this particular household decoration has the word "EASTER" displayed directly below the white rabbit on the porcelain base of the wire tree. Having the word "Easter" on the base limits its use to that holiday. Although not all rabbits are symbols of Easter, the fact that the white rabbit sits on the banner with the word "EASTER," makes him so peculairly stylized as to be the "Easter bunny," a traditional symbol of the Easter holiday. The wooden ornaments are packaged with the wire tree. Each ornament has a hanging loop and is capable of being hung on the wire tree due to its small size and weight. The ornaments are marketed and sold with the tree as "Easter" ornaments during the Easter season. These factors effectively limit the use of the article to the particular holiday of Easter and, thus, meets the third prong of Midwest. As such, it qualifies for treatment as a festive article in heading 9505. See ICP, "Classification of Festive Articles," at 32 Cust. Bull. 2/3 at page 177 [e.g., specifically listed are the "Easter bunny," "Easter egg," "Easter lily" and "’Happy Easter’"].
An application of the Carborundum factors to the article supports the foregoing. In terms of general physical characteristics, the wire tree with the Easter bunny on its base is a purely decorative item in an Easter motif with "Easter" ornaments. The ultimate purchaser would have the expectation of using the "Easter tree" for decoration of the home during the Easter holiday. The word "EASTER" on the base limits its use to the Easter holiday so that the consumer would not normally use it after the holiday. The article is marketed, displayed and advertised for retail sale, with other articles that are clearly unique to the Easter holiday, only during the Easter selling season. The channels of trade include retail stores which typically sell decorative Easter articles. The articles will be removed from the stores’ shelves immediately after the holiday. We conclude that, by application of the Carborundum criteria, this particular "Easter Tree" with its 18 ornaments is within the class of household decorations considered "festive articles" for tariff purposes under subheading 9505.90.60, HTSUS.
HOLDING:
Under GRI 1, this particular "Easter Tree" with 18 ornaments is classifiable in subheading 9505.90.60, HTSUS, as other festive articles.
Sincerely,
John Durant, Director
Commercial Rulings Division