CLA-2 RR:CR:GC 961905 JGB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: Heart-shaped Paperweights; Midwest of Cannon Falls, Inc. v. United States
Dear Mr. Simon:
This is in response to your letter of May 6, 1998, to the Customs National Commodity Specialist Division, New York, on behalf of Russ Berrie, Inc., in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on two models of paperweights, identified as item number 16029.
Your letter was referred to this office for reply. Supplementary arguments were made at a meeting at Headquarters on June 10, 1999. At that meeting you provided a sample.
FACTS:
The articles are heart-shaped paperweights, measuring approximately 2½ inches by approximately 2¾ inches by 1 inch in height. They consist of a pewter base and a clear plastic heart that is affixed to the base. A purplish-red material between the base and the plastic provides color to the heart portion. Imbedded in the plastic in one model is a metal key and heart-shaped imitation padlock. In the other model small metal hearts have been imbedded. The relative value of the pewter base to the plastic heart is approximately 1 to 3.
You state that the articles are designed to be displayed as decorative ornaments during the Valentine’s Day holiday and that they are decorative items specifically designed, marketed, and sold as ornaments for a specific holiday, Valentine’s Day.
ISSUE:
Whether the described merchandise, heart-shaped paperweights, are classified in heading 9505, HTSUS, as festive articles, or elsewhere.
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.
The heart-shaped paperweights consist of two main components, the plastic heart and the pewter base. Therefore, the articles are not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, 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:...when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “... composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
The EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this instance, the plastic heart is the primary component of the composite good in terms of value and bulk, while the pewter base serves a secondary function of embellishing the basic article. Because the plastic heart component supplies the essential character of the good, the classification of the plastic heart will govern the classification of the whole good.
Since the component which provides the essential character is an article of plastics, we look to chapter 39, HTSUS, which covers “plastics and articles thereof.”
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 heart-shaped paperweights are potentially 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 heart-shaped paperweights 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.
Customs views these articles as principally gift items, not really used in the celebration of Valentine’s Day. They function more in lieu of a Valentine card and would be given from one person to another as a token of affection. They would not be used to decorate the home, a standard employed by the trial court in Midwest, but, rather, would be typically put on a desk, bookcase, or kitchen shelf where knick-knacks would be kept. Once they are given, then would not be given again, in that they have personal sentiment attached, and it is doubtful that they would be put away after the holiday and brought out again the next year.
In this respect, the paperweights, while decorative, are not decorations. They are used neither for celebration nor entertainment on a holiday, in contrast to, for example, Easter Eggs, Jack-O’-Lanterns, or Christmas Stockings. Moreover, they are not associated with a particular holiday in the sense that the heart is a ubiquitous symbol, sometimes found on lockets, on playing cards, or providing the shape for a picture frame, to name a few instances. We would not dispute that more of these articles may be stocked and sold around Valentine’s Day than at other times of the year. However, the purchasing of the articles does not mean that they fall into the class of seasonal festive merchandise. In these and other ways, the Valentine articles are quite unlike goods falling into the class of festive articles. The paperweights are easily distinguishable from the Valentine Heart Shaped Wreath of wrought iron from the Midwest case in that the wreath might be brought out each Valentine’s Day for a party decoration and it would principally be used to decorate the home. The paperweights, by contrast, would not necessarily be found in the home, but would likely appear in places where there is no hint of a celebration of Valentine’s Day.
The articles also fail to meet several of the Carborundum standards:
As to physical characteristics, the heart shape has Valentine’s Day associations, but this heart has no practical limitations to use in and around that day.
The expectation of the ultimate purchaser would be to give a sentimental gift, the same expectation that would apply to a box of chocolates or a dozen red roses. These paperweights, therefore, would serve the same function as a sentimental gift given for a birthday or anniversary commemoration, or just a “thinking of you” occasion which would occur at random times throughout the year.
The channels of trade would be in gift shops along with knick-knacks, not particularized to Valentine’s Day merchandise.
The environment of the sale is not apparent on its face; however, Customs does not dispute the claims provided by the importer that “[t]hese particular items ... will be displayed and sold as Valentine’s Day items ...[and]...will be advertised in the Russ Berrie 1999 Valentine’s Day catalog.”
As to the use in the same manner as merchandise that defines the class, these articles are not used in the same manner of merchandise that defines the class, because they would likely stay out all year and would not be put away and displayed for seasonal/holiday decoration; they do not decorate; they or similar articles are plausibly sold and used all year around, not just during a particular holiday celebration, distinguishing them from true articles belonging in the class of festive goods.
The economic practicality of using the import in a manner consistent with the class does not seem to be a relevant consideration in this case. While it is claimed that it would be “illogical” and therefore “unlikely” to use this product in any way except as a Valentine’s Day decoration, Customs disagrees that the product is so designed and used as to be suitable for sale only in connection with the holiday. We recognize no calendar-based limitations for “affairs of the heart” and understand that sentimental and affectionate gift-giving takes place nearly every day of the year.
As to recognition in the trade of this use [as a festive article], Russ Berrie, Inc., may well claim that these particular items will be sold in the Valentine’s Day catalog; however, sale at one time of year does not preclude sale or use at another time of year, or indiscriminately throughout the year. In addition, heart-shaped trinkets, knick-knacks, and similar objects which form a class to which the instant merchandise belongs, are recognized by consumers as being available and used throughout the year.
Because the paperweights are not part of the class of festive articles, they are ineligible for classification in heading 9505, HTSUS, and are properly classified as other articles of plastic in heading 3926, HTSUS.
HOLDING:
The heart-shaped paperweights, Item 16029, are classified in subheading 3926.40, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division