CLA-2 RR:CR:GC 962254 HMC
Port Director of Customs
40 S. Gay Street
Baltimore, MD 21202
RE: Protest 1303-98-100152; Decorative Flag, Two-Mug Set, Fern Basket
Dear Port Director:
This is our decision on Protest 1303-98-100152, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a decorative flag, a two-mug set and a fern basket. The entries under protest were liquidated on June 26, 1998 and July 6, 1998, and this protest timely filed on August 6, 1998.
FACTS:
The merchandise under protest consists of a fern basket, a decorative flag and a two-mug set. The fern basket is approximately 8 ½ inches long by 3 inches wide. The front panel of the basket is 3 inches tall and the back wall is 7 ½ inches tall. The back wall and side panels rise together from the front panel, shaped as a semicircle. The back wall has a handle on top that measures 3 ½ inches. The basket is coated with a gold enamel and has attached to it a 3-inch holly leaf with three holly berries, both made of metal.
The decorative flag measures approximately 40 inches by 27 ½ inches. It depicts two adult penguins and a baby penguin in front standing on a pile of snow. Their bodies have a black and white coat. The black coat is over their heads, sides and legs and the white coat over their face and midsection. They also have orange beaks and feet. The adult penguins are each wearing a green or red scarf around their necks that fall down to the middle of their bodies. The baby penguin is also wearing a scarf with a green and red pattern that falls down in its front and back all the way to the floor. The flag's background depicts a deep blue sky with round snow flakes falling. The floor is white (as if covered with snow) all the way to the horizon.
The mugs have a winter village scene depicted on the whole circumference of the cup. The handle also has painted a part of the scene. Inside the mug there is a small drawing (about 1 ½ inches) of a sled being pulled by a horse and two people riding on the sled. Underneath the mug are the words " OIL PRINTING DESIGN COLLECTION" surrounding a crest showing a village house.
The fern basket was entered and liquidated under a provision for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601 under subheading 4602.10.18 of the Harmonized Tariff Schedule of the United States (HTSUS). The flag was entered and liquidated under a provision for other made up articles, including dress patterns under subheading 6307.90.99, HTSUS. The mug set was entered and liquidated under a provision for tableware, kitchenware, other household articles and toilet articles of porcelain or china under subheading 6911.10.45, HTSUS. The protestant claims that all of the articles are festive in nature and are properly classified under subheading 9505.10, HTSUS.
The 1997 HTSUS provisions under consideration are as follows:
4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:
4602.10 Of vegetable materials:
Other baskets and bags, whether or not lined:
Other:
4602.10.18 Other
* * * *
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other:
6307.90.99 Other
* * * *
6911 Tableware, kitchenware, other household articles and toilet articles, of porcelain or china:
6911.10 Tableware and kitchenware:
Other:
Other:
Other:
6911.10.45 Mugs and other steins
* * * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles: parts and accessories thereof:
9505.10 Articles for Christmas festivities and parts and accessories thereof
ISSUE:
Whether the fern basket, the decorative flag and the two-mug set are classifiable as festive, carnival or other entertainment articles under subheading 9505.10, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Note 1(t) to Section XI (which includes Chapter 63), HTSUS, states that Section XI does not cover articles of Chapter 95. Similarly, Chapter 69, Note 2(K) states that Chapter 69 does not cover articles of chapter 95. Thus, if the merchandise is described under heading 9505, then Note 1(t) to Section XI and Note 2 (K) to Chapter 69 precludes classification under heading 6307 or 6911.
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.
An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article. It must be used in the same manner as merchandise which defines the class. See Customs’ Informed Compliance Publication (ICP), “Classification of Festive Articles,” Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.
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” of heading 9505, decorative household articles which are representative of an accepted symbol of a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (ICP), “Classification of Festive Articles,” Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.
The Court in Midwest identified additional items that are classifiable as festive articles and provided the kind of decorative representations and patterns that will cause classification as festive. The Court recognized Christmas, Valentine's Day, Easter, Halloween and Thanksgiving as festive holidays.
With respect to decorative and utilitarian articles related to holidays and symbols not specifically mentioned in Midwest or in the ICP, 32 Customs Bulletin 2/3 at p. 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), Customs will also consider the general criteria set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 4229 U.S. 979 (hereinafter Carborundum). 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 fern basket and the mug set are functional/utilitarian articles and are not merely decorative. We must first determine if they are items recognized by Midwest, and if not, apply the Carborundum factors. In considering the Midwest criteria, the merchandise is not made predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Regarding the second and third prong of Midwest, we find that the basket and the mugs will not function primarily as items used in celebration of and for entertainment on a holiday (Christmas). Also, the articles are functional items which are not three dimensional representations of recognized motifs. It is our view that the items will not be displayed and used by the consumer only during Christmas. See Midwest at 124 (CAFC 1997).
Similarly, applying Carborundum, we find that the basket and mugs will be used throughout the year. The expectation of the ultimate purchaser, we find, is to use the basket to store items such as papers or letters during the year and to use the mugs not just during the holidays. Also, the basket and the mugs are not so changed in character as to consider them the class or kind of festive articles. They are not articles that will be used only or principally during the holidays.
With respect to the decorative flag, penguins are not a recognized icon of the Christmas holiday. The penguins in this instance are a symbol for the winter season. Since the penguin family flag is not mentioned in Midwest we need to apply the factors provided by Carborundum. At issue here is whether the additional red and green scarves so embellish the flag that it has become part of the class of festive articles. See Headquarters Ruling Letter (HQ) 961839, dated March 9, 1999, in which Customs found that the ordinary snowmen in the "Snowman Family Screen" were so embellished that the article had become part of the class of festive articles when the Carborundum factors were applied. In contrast, see HQ 961519, dated February 24, 1999, which determined that a "Scarecrow Snowman Lawn Ornament" was found not to belong to the class or kind of "festive articles" because it did not meet the Carborundum factors.
The Carborundum factors taken together lead to the conclusion that the flag is not within the class of festive articles. It is our view that the mere depiction of green and red scarves is not enough to make the flag an item which will be used solely during the Christmas holiday. The flag is not sufficiently embellished as to clearly identify it as a festive article. In addition, as with the basket and the mugs set, the flag may be used not only during the Christmas holiday, but also during the winter months. It is expected that the consumer will use the flag beyond Christmas. Therefore, we find that penguin family flag is not described by heading 9505, HTSUS.
HOLDING:
The fern basket is classifiable under subheading 4602.10.18, HTSUS, as "Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other baskets and bags, whether or not lined: Other: Other."
The two-mugs set is classifiable under subheading 6911.10.45, HTSUS, as "Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other: Other: Other: Mugs and other steins."
The decorative flag is classifiable under subheading 6307.90.99, HTSUS, as "Other made up articles, including dress patterns: Other: Other: Other."
This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division