CLA-2 RR:CR:GC 963701 BJB
Mr. Al Dwek
Telescope Structures, Inc.
109 Phillips Avenue
Deal, NJ 07723
RE: Challah cover; Festive article; Other furnishing; Midwest of Cannon Falls, Inc. v. United States.
Dear Mr. Dwek:
This is in response to your letters of November 17, 1999, and December 21, 1999, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of a “Challah Bread Cover,” (“challah cover”), pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letters and sample were forwarded to this office for reply. We regret the delay in responding.
FACTS:
The subject article is a woven cloth covering which you state will be made of cotton fabric with cotton lining or from synthetic fabric with synthetic fabric lining. The article measures approximately 14.5 inches by 12.5 inches in size. Fringe is sewn around the outer edges of the cloth. Decorative designs are embroidered on the front, top surface of the covering. The Hebrew expression, “Lech’vod Shabbat ve’Yom Tov,” is spelled out in embroidered Hebrew letters. You state that these words mean, “in celebration of the Sabbath and holy days.” On certain Jewish festivals, including the Jewish Sabbath, celebratory prayers are said over loaves of bread and wine prepared, and brought for the festive meals. The loaf of special bread placed on the Sabbath and holy day table, is called a “challah” in the singular. The challah cover is marketed as a ceremonial holiday cover for the Jewish Sabbath and certain holy days.
The cover is also decorated with pictures of fruits, a decanter of wine and kiddush cup, a candelabra with lighted candles, and a challah, each symbolizing an aspect of the Sabbath and holy days.
ISSUE:
Whether the challah cover is classifiable as a “table linen” at heading 6302, HTSUS, as “[o]ther furnishing articles,” in heading 6304, HTSUS, or as a “festive article” in heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 (ENs) 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 HTSUS headings under consideration are as follows:
Blankets and traveling rugs:
( ( ( ( ( (
Bed linen, table linen and kitchen linen:
( ( ( ( ( (
Curtains (including drapes) and interior blinds; curtain or bed valances:
( ( ( ( ( (
6304 Other furnishing articles, excluding those of
heading 9404:
Bedspreads:
Other:
* * * * * *
6304.92.00 Not knitted or crocheted, of
cotton..............................(369)
6304.93.00 Not knitted or crocheted, of synthetic
fibers..............................(666)
( ( ( ( ( (
9505 Festive, carnival or other entertainment articles,
including magic tricks and practical joke articles;
parts and accessories thereof:
( ( ( ( ( (
9505.90.60 Other....................................
( ( ( ( ( (
Heading 6304, HTSUS, provides for “Other furnishing articles, excluding those of heading 9404[.]” Under EN 63.04, we note that heading 6304 covers furnishing articles, other than bedspreads, and “other than those of the preceding headings.” Therefore, we must first examine the applicability of headings 6301- 6303, HTSUS.
Heading 6301 prima facie does not provide for articles for use on a table similar to the subject challah cover. Heading 6301 pertains to blankets and travelling rugs.
Heading 6302, provides for “[b]ed linen, table linen, toilet linen and kitchen linen[.]” EN 63.02, Section XI, Chapter 63, Sub-Chapter I, provides that heading 6302 includes, “(2) Table linen, e.g., table cloths, table mats and runners, tray-cloths, table-centres, serviettes, tea napkins, sachets for serviettes, doilies, [and] drip mats.” However, your sample shows that the challah cover is not a napkin, nor is it provided for under any of the exemplars described at EN 63.02. The challah cover is not a table covering. It is used to cover the challah bread. It is also not a tablemat as nothing is placed upon it, and it is not meant for use as a napkin, although the article is used at the meal table.
In addition to your sample, the pictures you submitted of other protective coverings for Jewish religious ceremonies and objects, emphasize that the challah covers are flat, decorative textile cloths used primarily for ceremonial purposes. Although the challah cover is similar to articles classifiable as table linen at heading 6302, e.g., it appears at the meal table, one significant difference is that the challah cover at issue is used during multiple Jewish holidays throughout the year. During each of the several festivals it is used, it is used for ceremonial purposes.
The challah cover is not classifiable at heading 6302, HTSUS. In HQ 954471, dated September 16, 1993, Customs determined that a decoratively embroidered linen napkin used during baptismal ceremonies was not classifiable at heading 6302. Customs held that the embroidered linen napkin did serve a ceremonial function. Customs determined that the embroidered baptismal napkin qualified as “textile furnishings for ceremonies” and as such was classifiable at heading 6304, HTSUS.
Heading 6303 states that it covers, “[c]urtains (including drapes) and interior blinds; curtain or bed valences,” none of which describe your sample or any of the pictures of other challah covers you’ve submitted. The challah cover is not provided for in heading 6303.
EN 63.04 provides for, “[o]ther furnishing articles, excluding those of Heading No. 94.04, [and] covers furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home, . . . churches, etc., . . ..” The challah cover is used both in the home and in the synagogue. EN 63.04 also provides that, “[t]hese articles include wall hangings and textile furnishings for ceremonies (e.g., weddings or funerals); . . .; table covers (other than those having the characteristics of floor coverings [.]”
The Court of International Trade has held that flat, decorative, and protective coverings, were the type of articles provided for under heading 6304. The Court determined in The Item Company, Inc. d/b/a Blue Ridge: The Item Company, v. United States, that, “it [was] clear . . . that Congress did not intend for heading 6304 to include items with characteristics other than flat, protective and decorative.” (19 CIT 1000). Your sample shows that the challah cover is decorative and you state that the challah bread is covered while a blessing over wine is recited. The challah cover is used both in the home and in the synagogue on a variety of holidays.
Although the challah cover is used at the holiday and Sabbath meal table on a variety of holiday occasions, the question arises whether it is provided for at heading 9505, HTSUS. Heading 9505 provides in pertinent part, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS.
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 Informed Compliance Publication, “Classification of Festive Articles,” 32 Customs Bulletin, 2/3, (January 21, 1998), at page 177 (“IV. Additional Motifs, Symbols or Representations, A. Decorative Items”).
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 (1976), (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 known as “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.
In considering the Midwest standards, we note that the challah cover is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The challah cover covers the festive loaves of bread on the Sabbath and certain holy days. It is not used to keep the bread fresh but adds to the festive character of the Sabbath or holiday table.
However, at issue here is whether the challah cover corresponds to articles used in celebration of a particular Jewish holiday. The challah cover is not primarily used for “a particular” festive occasion as required under the Midwest standards. It is clear that the Hebrew expression embroidered on top of the challah cover, “Lech’vod Shabbat ve’Yom Tov,” is distinctive and traditionally used on such a covering. This expression explicitly refers to the Sabbath and a series of festive holy days or holidays. In fact, in The Dictionary of Jewish Lore and Legend, Alan Unterman, Thames and Hudson, at pp. 47, 117; pictures demonstrate that the above words constitute a well-known traditional Hebrew expression associated with a challah cover identifiably for use as a part of the class of festive articles for the Jewish Sabbath and certain holy days. Nonetheless, we note in the Hebrew lexicon of concepts of Judaism, “From the Foundations,” Carta, (April, 1995), holy days or “yomim tovim” include: the first, second, seventh and eighth days of Passover, Shavuot, Rosh Hashannah, and Sukkot (Feast of Tabernacles). Thus, the challah cover is not limited to one or two religious festive holidays but to a number of festive holidays. As presented, the challah cover is clearly useable for several, distinct, Jewish festive holidays, and as such, does not meet 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 challah cover is completely dedicated to use in connection with religious observance. The embroidered symbols and Hebrew lettering on the upper face of the cover would limit the article’s usefulness to ritual observance and render it inappropriate for any other type of use, such as an ordinary cover for bread in connection with a daily or ordinary meal. Moreover, the embroidery of Hebrew words on the face of the challah cover distinguishes the article, tying it to a particular prayer recited in Hebrew and a particular order that that blessing is given.
The ultimate purchaser would have the expectation of using the article in connection with the celebration of the festive occasions and at no other time. In the absence of your own sample, you have submitted a hand-sewn article which you state is similar to the challah covers you intend to have produced in India and/or in China. The article submitted is decorative, in that it has gold, silver, red, green and black threads on a white background with fringe sewn along the outer edges, and would appear to fall within the class of festive articles regardless of its decorative nature, in the same way that a “plain” nativity scene or Christmas stocking might fall into such a class of festive articles. However, a nativity scene or Christmas stocking would not be used for more than one holiday, whereas the subject article would be used for several holidays on numerous occasions.
Evidence of the channels of trade has not been presented, and it is unclear whether there would be stores that specialize in such merchandise.
It would seem probable that the article would be offered year-round in Jewish bookstores and gift shops selling items for Jewish festive celebrations, as opposed to being offered for sale at a particular time of year or in religious supply stores. While a challah cover may also be used for celebrations made in a synagogue proper, the primary use is intended to be in the home by an individual or family celebrating a religious festival. In the same manner, the use of ornaments on a Christmas tree located in a church does not alter their nature as festive articles.
The environment of the sale is unclear. The use of the article in the same manner as merchandise which defines the class is satisfied in that the article will be used only on festive occasions, including the Sabbath, in a completely prescribed manner in connection with particular prayers, blessings and the like. In contrast to “ordinary” cloth food coverings, including “ordinary” napkins, the article will be sold only in units of one, not as a set or in multiples, and will be used until it becomes badly stained, the embroidery unravels, or is given away, only to be replaced by another challah cover to be used for the same purposes.
Unlike the crystal blessing cup subject of HQ 962128, dated October 18, 1999, the challah cover is clearly for use on multiple festive holy days and the Sabbath, not just primarily for the Jewish Sabbath. While the challah cover could be used for the Sabbath it is specifically designated for use on several other holidays. This use would not satisfy the requirement that the article be used primarily for, or on, a particular festive holiday or occasion that can be identified with certainty.
Subheading 6304.92.00, HTSUS, provides for furnishing articles other than bedspreads, “[n]ot knitted or crocheted, of cotton (369),” and subheading 6304.93.00, HTSUS, “Not knitted or crocheted, of synthetic fibers (666).” Depending upon the fabric used to produce the challah cover, it would be classifiable under the appropriate subheading.
HOLDING:
The challah cover is classifiable in heading 6304, HTSUS, which provides for “Other furnishing articles, excluding those of heading 9404: Other[.]” Depending upon whether cotton or synthetic fabric is used to produce the challah cover, it would be classifiable under subheading 6304.92.0000, HTSUS, which provides for articles, “Not knitted or crocheted, of cotton,” or subheading 6304.93.0000, HTSUS, “Not knitted or crocheted, of synthetic fibers.” The quota category for the former is 369, and for the latter, 666.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division