United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2001 HQ Rulings > HQ 963831 - HQ 964114 > HQ 963976

Previous Ruling Next Ruling
HQ 963976




May 11, 2001

CLA-2 RR:CR:GC 963976 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.60

Mr. Al Dwek
TS Group Inc.
109 Phillips Avenue
Deal, NJ 07723

RE: Citron or etrog box; NY F83489, C88308; Festive article; HQs 962128, 963701, 964896; Midwest of Cannon Falls, Inc. v. United States,; United States v. Carborundum Company.

Dear Mr. Dwek:

This is in response to your letter of February 16, 2000, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of a decorative “citron box,” pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and sample merchandise were forwarded to this office for reply.

FACTS:

The subject article is identified as a “citron” or “etrog box.” It is a container made to hold a citron, a citrus fruit, often referred to by its corresponding Hebrew name, “etrog.” During the Jewish festival of “Succot,” known as the “time of our rejoicing” Jewish tradition commemorates the period when the Israelites survived in the desert in temporary shelters or “booths,” also known as succot (hence the name), upon their exodus from slavery in Egypt. The festival of Succot, also known as the “Feast of Tabernacles,” is a festival of double thanksgiving that begins 5 days after the solemn holy day of Yom Kippur (“Day of Atonement”), and is an expression of gratitude for the bounty of the earth.

One of the symbols of the Succot festival is the citron. This bitter, lemon-like fruit is an integral part of the ceremonies and special prayers associated with the holiday. To fulfill its ritual role and ceremonial purpose, the citron or etrog, must be perfect in stem and body. Those observing Succot often place their holiday citron in an ornate receptacle.

The subject container is ornately decorated. It consists of an oval shaped cardboard box covered by textile material. The velvet textile cover of the box is embroidered with a citron fruit and foliage, as well as a depiction of the symbolic “lulav,” a combination, inter alia, of myrtle and willow branches and date palm fronds, used in combined ritual observance and prayers with the citron. The inner top of the box, and bottom, are padded. The entire box is lined with fabric. The outside surface is covered in blue velvet textile material, decorated with an embroidered design, and edged with gold trim. The sides of the box are embroidered with pictures of fruits, the citron, and part of a Hebrew quotation from the Bible (Leviticus 23:40), “Velekachtem lachem pree etz hadar,” meaning, “and you shall take fruit of a beautiful tree.”

The citron box measures approximately 7 inches long, 4 inches across, and 5 inches high. The lid is permanently attached to the bottom portion of the box by velvet fabric on one side, and secured closed by a cloth band extending from the top lid to the base of the box by a magnetic fastener.

You state that the citron box is only used during the Jewish holiday of Succot, and that it is marketed as a holiday container for use during the Succot holiday season, not to be used for any other occasion. It is available at certain ethnic and religious gift shops and on several Internet websites just before and generally during the holiday season. Citrons are not eaten as part of the festive ritual observance of Succot. The citron boxes do not contain the citrons at the time of sale. The citrons are generally not sold outside of specialty religious gift or specialty food markets, neither are they sold in these stores beyond the Succot holiday period.

ISSUE:

Whether the “citron box” is classifiable as, “[o] ther made up articles, including dress patterns[,]”at heading 6307, 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 GRIs 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 GRIs.

The HTSUS provisions under consideration are as follows:

Other made up articles, including dress patterns:

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Heading 6307, HTSUS, provides for articles of “[o]ther made up articles, including dress patterns[,]” which covers merchandise similar to the subject “citron box” container. The ENs to heading 6307, provide that the heading covers “made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.” However, the text of EN 6307(o) states, that the chapter does not cover,”[t]oys, games and entertainment articles, etc., of Chapter 95.”

The question, therefore arises, whether the citron box is provided for in Chapter 95, 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 considered as “festive articles,” certain items which were advertised and sold to consumers before the particular holiday with which they were associated. It was determined that the items must be used in celebration of, and for, entertainment on a joyous holiday. In NY C88308, dated June 19, 1998, and HQ 962128, dated October 18, 1999, Customs recognized that the Jewish festival of freedom, called “Passover,” meets the court’s standard of a joyous holiday. We find that the Jewish religious festival of Succot also meets the court’s standard.

In 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, however, is not dispositive of its classification and, consequently, does not automatically transform an item into a festive article. Thus, in HQ 964896, dated April 16, 2001, Customs determined that merely stamping the letters of the word “matzah” in Hebrew or English, on an acrylic household container, would not transform it into a festive article. In HQ 964896, Customs noted that, “[a] matzah box without the word ‘matzah’ laminated or stamped on it, would be a plastic household container.” Further, absent that one laminated word, the matzah box, “would not be used to add to the festive character of the holiday meal table.” The nature of the citron box is, however, different than that of the matzah box described in HQ 964896. In HQ 964896, it was determined that the utilitarian purposes of the “matzah box” far outweighed any incidental “festive” nature that might be attributed to an acrylic box stamped with a single word for, or describing, a particular food.

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 considering the Midwest standards, we note that the citron box is not made predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The citron box holds a singular citron or etrog, and is used strictly in accordance with festive ritual practice, and for celebratory prayers during the Succot holiday. Unlike “matzah” (flat, unleavened bread) eaten in particular, during the Jewish festival of Passover, the citron is not eaten as a part of festive observance, during Succot or at any other time.

Insofar as the citron is used strictly as a part of festive ritual practice its placement in a container, and any practical protection or utilitarian function that box might provide, is in furtherance of the citron’s use in celebratory activities of the holiday. While certain prayers are recited over the matzah at particular moments during the Passover holiday, matzah may be, and is in fact, eaten year round and not solely as part of Passover celebratory festivities. Thus, a durable plastic acrylic container used primarily for storage and efficient handling of food, does little to support the use of matzah in festive ritual, or in its celebratory role during the Passover holiday. However, other than for their use on Succot, citrons are rarely available. Whereas the use of a citron is a requirement of the Succot holiday, it is specific to the Succot holiday itself. Citrons are primarily cultivated in preparation for the celebration of, and sold just prior to or during, the Succot holiday. Insofar as citrons are substantially used only for Succot, the citron box is exclusively associated with the holiday. The citron box would be bought and sold during this time period for use only during this holiday.

For ritual purposes, the citron must be perfect in stem and body according to strict specifications. If a citron fails to meet these specifications, it may not appropriately be used in prayer for Succot holiday celebrations and would be considered worthless. Thus, a citron box has utilitarian attributes, both in its use to protect the fruit’s easily breakable stem, and to transport it to the family’s backyard Succot booth as well as to synagogue for festive prayers. Although a citron box may also be used for holiday celebrations held in a synagogue proper, its primary use is intended to be in or around the home by an individual or family.

The citron box has a distinct elliptical shape that is three-dimensional and readily identifiable as being used for the holiday citron. The citron box does appear to be a functional item used in the celebration of a festive occasion. Moreover, the embroidered quotation in Hebrew from the Bible, would limit the article’s usefulness to ritual observance and render it inappropriate for any other type of use, such as an ordinary container in which to deposit some other article or mere trinkets. The box’s shape, size, type of decorations, and lettering, tying it to a particular prayer or ritual requirement, in Hebrew, distinguishes this article from others. On balance these characteristics also demonstrate the primacy of the article’s decorative and festive nature over its utilitarian aspects.

The ultimate purchaser of this article would have the expectation of using it in connection with the celebration of the stated festive occasion and at no other time. The article is decorative as evidenced by its blue velvet textile covering and gold trim, and the festive symbols embroidered on its exterior. Therefore, this article would appear to fall within the class of festive articles.

Evidence of the channels of trade has been asserted but not presented. There are stores that specialize in such merchandise. It would seem probable that the article would be offered in religious gift shops. This point emphasizes that the use is intended to be in the home, in a communal or family setting, not predominantly in houses of worship.

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, in a completely prescribed manner, and in connection with a ritual article used for particular prayers, blessings, ceremonial processions, and the like. The consumer is not apt to purchase multiple citron boxes. The citron box is not unlike a Christmas stocking, insofar as the consumer would buy one, and use it each year for many years solely during the holiday.

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.

A festive article’s function is supposed to be predominantly decorative, as opposed to being primarily utilitarian. The citron box is used to hold and keep the citron. It does serve a very useful function, to protect the fruit from being mishandled in a manner that would render it useless for prayer or ceremonial purposes. However, the citron box, remains primarily decorative and festive in nature. This citron box is brightly decorated, with well-recognized symbols of the Succot festival. It is covered with blue velvet and gold trim with ornate embroidery including the specific biblical Hebrew injunction to use a citron for Succot. The elongated and curved box is intentionally designed to reflect the well-recognized shape of an elliptical citron. Although there is some padding on the bottom interior of the citron box, it appears that a citron would not be simply dropped into it absent additional cushioning materials. Citrons are not necessarily uniform in size. An unswaddled citron placed in the subject citron box would still face the threat of a broken stem. A citron would still roll around in the box, absent swaddling, if it was too small, or otherwise a close fit for the citron box. Unsecured, the fruit’s stem in particular, would run the risk of being damage, thus rendering the citron useless. Thus, for example, citrons themselves are generally individually sold, swaddled in flax or other soft form fitting packing material, then hand-packed into boxes. To prevent a citron from rolling around in the one-size fits all citron box, it appears that the fruit and its accompanying flax swaddling, would be transferred from the undecorated cardboard packing box it was purchased in, to the family’s festive citron box.

In HQ 964896, the utilitarian purposes of the “matzah box” far outweighed any festive purpose or use attributed to that article. The subject citron box, and its festive nature and use, are distinguishable from the “matzah box.” The “matzah box” was a container for food regularly consumed at the meal table or stored on the kitchen countertop. Moreover, the matzah not only could be, but also is in fact, sold and eaten nationwide during the entire year, thus, further suggesting that a “matzah box” could also be used throughout the year. The citron box is not used to routinely contain the citron for consumption, but rather to present it for use in prayer or family ceremonial use. The citron box is not alone sufficient to safeguard the fruit from irreparable damage, and therefore, is not altogether utilitarian. Further, unlike the “matzah box,” constructed with durable acrylic plastic, the citron box is primarily made of cardboard and light fabric, and not durable for year-round or rigorous use.

The “matzah box” also had other utilitarian characteristics in its design that the citron box does not. The “matzah box’s” design lent to limiting the dispersal of crumbs once the original matzah cardboard box packaging was opened and discarded. The “matzah box’s” construction using transparent acrylic also provided a clear functional benefit, enabling the user to see how full the container might be, when it might need to be refilled, and the condition of its contents. The citron box has none of these practical attributes.

A basic axiom of customs law is that goods are classified in their condition as imported. In other words, we must determine if the citron box, in its condition as imported, is recognized in that state as a “festive article” used in the celebration of a particular Jewish holiday. The article is imported as a cardboard, cloth covered citron box, embroidered with decorations and part of a Hebrew prayer on it for use on the Succot festival. The Hebrew words embroidered on the citron box evoke more than an association with a Succot holiday food, it evokes the use of a specific fruit, again, not for consumption, but for its use in fulfillment of a ritual, to be celebrated on one particular holiday. The citron box is indeed, unlike the “matzah box,” “reserved” by its design and construction, for use only at the Succot festival time.

Similar to the crystal blessing cup, subject of HQ 962128, dated October 18, 1999, and the “Seder plate” subject of NY C88308, dated June 19, 1998, the citron box’s primary function is not predominantly utilitarian, but supportive of a celebratory, or decorative role. It is directly tied to the particular Succot holiday and its ritual ceremonies and observance. Although, it is the citron that is used for, and in furtherance of, the celebration of specific rituals and prayers during the Succot holiday, it is the subject article that clearly functions, not as a mere storage container, but an enhancement and support of the ceremonial and symbolic role the fruit holds on this holiday. Like the “Seder plate” discussed in NY C88308, with its celebratory role in the central festive meals of Passover (Seders), the citron box’s overriding purpose is festive, thereby overriding any utilitarian function it may otherwise have.

The Carborundum factors taken together point to a conclusion that the subject article is within the class of “festive articles.” Having determined that the citron box is described at heading 9505, HTSUS, it is excluded from classification under heading 6307.

HOLDING:

At GRI 1, the “citron box” is classifiable at subheading 9505.90.60, HTSUS, the provision for “[f]estive, carnival or other entertainment articles, . . . . parts and accessories thereof: Other: Other.”

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: