CLA-2 RR:CR:GC 962249 JGB
Louis Shoichet, Esq.
Tompkins & Davidson
1515 Broadway
New York, New York 10036-8901
RE: “Easter Snowglobes” Festive Articles; “Midwest of Cannon Falls, Inc. v. United States”
Dear Mr. Shoichet:
This is in response to the request of September 2, 1998, to the Customs National Commodity Specialists Division, New York, on behalf of Avon Products, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two styles of Easter Snowglobes. The articles are expected to be manufactured in China. The letter was referred to this office for reply. We regret the delay.
FACTS:
Two styles of Easter Snowglobes are under consideration here. One, Style # PP178028, is a figure of a female rabbit pushing a wheelbarrow. In the wheelbarrow is an egg-shaped water globe. Inside the globe is a small seated female rabbit holding a carrot. The globe appears to sit amidst a series of small vegetables and decorated eggs.
The second style, # PP178029, is the figure of a male rabbit pushing a wheelbarrow. In the wheelbarrow is an egg-shaped water globe. Inside the globe is a small seated male rabbit holding flowers. The globe appears to sit amidst a ring of flowers.
The figures are made of 60 percent polyester resin and 40 percent calcium carbonate, of artificial manufacture. The wheelbarrows are of metal wire and the globes are of glass.
The articles are claimed to be bought and sold as Easter ornaments. The articles appear in proposed Easter-related promotional literature prepared by the importer.
ISSUE:
Whether the Easter Snowglobes are classified in heading 3926, HTSUS, as statuettes or other ornamental articles of plastics 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.
Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS. Although the Easter Snowglobes are described by both heading 3926 and 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. Thus, if the Easter Snowglobes are classifiable under heading 9505, then Note 2(v) to chapter 39 precludes classification under heading 3926 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 these Easter Snowglobes, taken as a whole, can be identified as an article used in celebration of the recognized holiday of Easter. In other words, in view of the many fanciful rabbits that are not associated with the Easter holiday (e.g., Peter Rabbit, Bugs Bunny, etc.) and the large number of ornamental eggs marketed and sold that are not Easter eggs, are these particular representations, so associated with Easter in their presentation that they have become part of the class of festive articles.
In considering the Midwest standards, the Easter Snowglobes are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. As indicated earlier, not all rabbits and eggs are automatically an accepted symbol for the recognized holiday of Easter. 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 Easter Snowglobes have no functional aspects and are only decorative. The groupings of the baby rabbits with spring flowers and decorated eggs suggest and are consistent with an Easter relationship. The ultimate purchaser would have the expectation of using the article to decorate. The channels of trade would likely be in mail-order catalogues for selling decorative Easter articles principally during the pre-Easter season. The environment of the sale appears to be as part of an Easter holiday sales promotional effort. The recognition in the trade would apparently be as an Easter article, in that the proposed catalog pages provided are under the title “Easter Greetings.”
The Carborundum factors taken together point to a conclusion that the articles are within the class of festive articles. We note that water globes in an egg shape with rabbits inside were considered in the Midwest decision and found to be within the class of festive articles. In that case, an aspect of the decision appears to be that the rabbits were identifiable as Easter festive articles because they were bought and sold as such and so recognized in the trade. These more elaborate Easter Snowglobes consisting of an Easter rabbit pushing a wheelbarrow containing baby rabbit in a snowglobe are likewise presented with sufficient evidence to identify them as festive articles. Since the Easter Snowglobes qualify as festive articles in chapter 95, they are classified there and are precluded from classification in heading 3926 by Note 2(v) to chapter 39, HTSUS.
HOLDING:
The “Easter Snowglobes”, styles # PP178028 and # PP178029 are therefore classified as festive articles under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division