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HQ 087969

January 8, 1991

CLA-2 CO:R:C:G 087969 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.60

Mr. James J. Jazwinski
Polean Foods, Inc.
6 Split Oak Drive
East Norwich, New York 11732

RE: Hand painted, decorated eggs

Dear Mr. Jazwinski:

This is in response to your inquiry of August 8, 1990, concerning the classification of two varieties of hand painted, decorated eggs to be imported from Poland. Pictures of one item of each variety were included with your request.

FACTS:

The subject merchandise consists of two varieties of eggs which are known in the trade as "Pysanka." "Pysanka" is described in your inquiry as "a painted decorated egg, its a traditional Eastern European Easter Egg." One variety is composed of a natural egg shell from either a domestic chicken or domestic goose. The egg is emptied of the yolk and the white and then painted with a decorative design. The other variety is constructed of wood which is carved or otherwise worked into an egg shape, then painted with a decorative design. A ribbon is sometimes attached to both varieties to allow hanging of the eggs. In telephone conversations of October 24 and 31, 1990, you informed this office that these eggs will be marketed and sold primarily as Easter items, but may also be sold during other holiday periods, including Christmas. You stated that it is the intention of the importer that, during the Easter Season, the subject merchandise be displayed in stores with other Easter items and sold as such. You further stated that it is likely that the eggs will be manufactured by several different companies and will sell for approximately $5.00 each.

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

The General Rules of Intepretation (GRI's) set forth the legal framework in which merchandise is to be classified under the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

The headings at issue in this case are as follows:

(a) 9505, HTSUSA, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof...

(b) 9701, HTSUSA, Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand-decorated manufactured articles...

(c) 9601, HTSUSA, Worked ivory, bone, tortoise-shell, horn, antlers, coral, mother-of-pearl and other animal carving material, and articles of these materials...[and]

(d) 4420, HTSUSA, Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood;....

Heading 9505, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes offer guidance in the interpretation of the headings. The Explanatory Note to Heading 9505 indicates that the heading covers:

(A) Festive, carnival or other entertainment articles which in view of their intended use are generally made of non-durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

Articles classifiable in Heading 9505, HTSUSA, tend to have no function other than decoration. Heading 9505 is generally regarded as a use provision.

It is Customs position that Heading 9505, HTSUSA, generally covers articles which by their shape, design, and ornamental characteristics fall into that class of goods which are appropriately used in connection with a recognized festive holiday. While utilitarian articles may be classifiable in Heading 9505, HTSUSA, they must, as a class, be holiday related.

It is our determination that the subject decorated eggs, both wood and natural shell, are properly classifiable in Heading 9505, HTSUSA. As noted in Headquarters Ruling Letter (HRL) 084050, dated July 11, 1989, decorated eggs have long been recognized as an important part of the Easter celebration. Customs has also recognized that decorated eggs are a holiday related class of item; in the above ruling letter a piece of styrofoam in the shape of an egg, wrapped with a colored rope, was classified in Heading 9505. In the Encyclopedia Americana, Volume 9, (1980) at page 561, the following is noted:

Eggs, for example, are central to a variety of Easter customs. A number of explanations have been suggested. Formerly, eggs were forbidden during the Lenten fast but could again be eaten at Easter. Thus, decorated eggs could symbolize the end of the penitential season and the beginning of joyful celebration. Also, eggs as traditional symbols of life and creation, suggest the Resurrection. Likewise, eggs, colored like the rays of the returning sun or the northern lights, symbolize the return of spring. In any case, it has become customary in many places to decorate and exchange eggs at Easter....

These items will be marketed, sold and most likely used as Easter and other holiday display items. They have little use other than as decorative items; some of them will have ribbons attached to increase their decorative value by allowing hanging and enhancing their appearance. It is not likely that they will be displayed on a year-round basis. The eggs that will be constructed of decorated empty shell will basically be non-durable items such as is described in the Explanatory Note to Heading 9505.

These eggs may also qualify for classification in other headings. When goods are prima facie classifiable under two or more headings, we must refer to GRI 3. GRI 3 states, 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:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

In the case of the eggs constructed of wood, the provision competing with Heading 9505, HTSUSA, is Heading 4420, HTSUSA, which provides, inter alia, for "...statuettes and other ornaments, of wood." In the case of the natural shell eggs the only possible competing provision would be Heading 9601, HTSUSA, which provides inter alia, for "animal carving material, and articles of these materials...." Both of these possible alternatives to the festive article provision, a use provision, are eo nomine provisions. As between eo nomine and use provisions, the latter is generally regarded as being the more specific provision because it is usually the most difficult to satisfy.

Another possible classification of the subject merchandise that can be discounted is classification under Heading 9701, HTSUSA, which applies to "Paintings, drawings and pastels, executed entirely by hand...." HRL 086227, dated April 18, 1990, states that "In order for an article to be classified in Chapter 97, HTSUSA, it must meet the standard for "work of art." HRL 086047, dated February 28, 1990 and HRL 087170, dated September 14, 1990, citing various court decisions, discuss the factors that are necessary for classification as a "work of art" under chapter 97, HTSUSA. According to the relevant factors, these items do not qualify for classification under this heading; they are not created by renowned artists and there is no evidence that they have been or will be displayed in art galleries as objects of fine art. The fact that the items do not meet the standards for "works of art" is further evidenced by the low price, approximately $5.00 each, that they will sell for. The eggs are specifically excluded by the language of the heading itself, which excludes "hand-painted or hand-decorated manufactured articles." Moreover, as with the other competing provisions, Heading 9701, HTSUSA, is an eo nomine provision and is thus less specific than Heading 9505, HTSUSA.

HOLDING:

The two decorated eggs are properly classifiable under subheading 9505.90.60, HTSUSA, as festive, carnival or other entertainment articles, other, other. The applicable duty rate is 3.1% ad valorem. The instant merchandise may be entitled to free entry under the Generalized System of Preferences (GSP), if otherwise qualified.

Sincerely,

John Durant, Director

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