CLA-2 RR:CR:GC 961838 JGB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: “Christmas Candy Dish” Festive Article; “Christmas Cup” Not Festive Article; Midwest of Cannon Falls, Inc. v. United
States;
Dear Mr. Simon:
This is in response to your letter of March 31, 1998, to the Customs National Commodity Specialists Division, New York, 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 Christmas candy bowl and Christmas cup, items 13260 and 12530, respectively. The items are to be manufactured in China.
Your letter was referred to this office for reply. Supplementary arguments were made at a meeting at Headquarters on March 17, 1999, at which an additional sample was provided. We regret the delay in providing this response.
FACTS:
Item 13260 is a ceramic Christmas candy bowl. The item measures approximately 7-1/4 inches in length by approximately 5 inches in width. A painted figure of Santa Claus’ head is about 3 inches in height, from the top of the hat to the bottom of the beard, and the head protrudes about 2 inches above the rim of the bowl. Santa’s outstretched arms hold the rim of the bowl and the inside and the outside of the bowl are decorated with white snowflakes while three buttons adorn the front of the bowl. In use it appears that a Santa Claus figure would be holding open a sack or part of his outfit which is so full of presents or candy that his body is obscured. The effect of the article is a three dimensional representation of Santa Claus bearing gifts, even though a close examination of the article discloses that there is no Santa Claus below the shoulders or upper torso.
The cup, item 12530, measures approximately 5 inches in height. The cup’s diameter is approximately 3-1/4 inches. It has raised depictions of holly leaves randomly displayed on the outer surface of the cup and a raised bas relief of Santa Claus about 1-3/4 inches high by 1 inch in width, with an elevation of about 1/4 inch from the smooth surface of the cup. The phrase “eat, drink & be merry” appears at three locations on the cup. The cup is affixed to a ceramic pedestal-type base measuring about 1 inch from the surface the cup rests on to the actual inside bottom of the cup.
ISSUE:
Whether the cup and candy bowl are classified in heading 6912, HTSUS, as ceramic tableware and kitchenware 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.
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.
The cup and bowl are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The bowl is a functional, three-dimensional representations of the upper torso and head of Santa Claus. Santa Claus is an accepted symbol for the recognized holiday - Christmas. Therefore, it qualifies as a festive article of heading 9505.
The cup, by contrast, is a functional, three-dimensional vessel for serving hot liquids. Its external decoration does not transform the cup into a holiday decoration; it still functions principally as a cup, not as something that is principally used to decorate the home. As such, this article does not meet the second of the Midwest criteria.
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 “Christmas cup” article is a cup or mug, easily recognized by anyone, whether or not celebrating a holiday. The ultimate purchaser would have the expectation of using the article not to decorate, but to serve beverages. The channels of trade would typically be in stores selling ceramic articles or housewares sections of department stores, although other outlets might readily come to mind. Similar goods would not in any way be limited to sale in stores or departments specializing in Christmas goods. Moreover, the use of the article would not be practically limited to the celebration of the holiday. The article is so general in its appeal that no particular holiday is indicated. Whenever eating, drinking or being merry is considered desirable, this cup will reinforce the theme. We conclude that, by application of the Carborundum criteria, the “Christmas cup” does not constitute a festive article.
HOLDING:
The “Christmas Candy dish” is 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.”
The “Christmas cup” is classified in subheading 6912.00.44, 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: Mugs and other steins.”
Sincerely,
John Durant, Director
Commercial Rulings Division