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HQ 964364




January 9, 2001

CLA-2 RR:CR:GC 964364 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.50

Port Director of Customs
Los Angeles-Long Beach Seaport
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-00-101335; “Treasured Heart Box”

Dear Port Director:

The following is our decision regarding Protest 2704-00-101335 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a “Treasured Heart Box”. The entry was liquidated on February 25, 2000, and the protest was timely filed on May 18, 2000.

FACTS:

The “Treasured Heart Box” is a shiny-red, three-dimensional heart-shaped, ceramic container which measures approximately 5.25” x 4.25”x 2.5”. A shiny-red, heart-shaped, ceramic matching lid, which fits comfortably on top of the container is included. A heart-shaped, faceted plastic crystal, which measures approximately 1” in length, is affixed upon the center of the lid’s cover. A sample was provided.

Counsel for the importer, Teleflora, indicates that the article under protest, the “Treasured Heart Box” has an exclusive use as a flower holder which is sold by Teleflora and its affiliates for use on Valentine’s Day. The box is imported empty with a Valentine’s Day heart card reflecting the message “You’re A Treasure”. The box is not sold separately to the public, but is filled with a fresh flower bouquet, in which the Valentine’s Day card is prominently displayed.

According to counsel, the article is exclusively marketed and sold as a Valentine’s Day item. A copy of Teleflora’s marketing brochures exhibiting the manner in which the entire item is sold to the public reads as follows:

“An unmistakable expression of love for Valentine’s Day, the Treasured Heart Bouquet is a wondrous new vision of the traditional heart-shaped keepsake.

The precious gemstone and gleaming red finish making this a true gift of the heart. Overflowing with a romantic bouquet, it’s a definite Valentine’s treasure.”

The consumer advertisement reads as follows:

“Go straight for her heart”
“Romance for one and only with Teleflora’s Treasured Heart Bouquet. Gorgeous fresh flowers fill a red-hot ceramic treasure box that sparkles with a pretty gemstone. The keepsake heart will give her a special place to hold other tokens of your love for years to come.”

Shipments of the article were entered on November 19, 1999, December 3, 1999 and December 8, 1999, under subheading 9505.90.60 HTSUS, which provides for “festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: otherother”.

The entries were liquidated on February 25, 2000, under subheading 6912.00.50, HTSUS, which provides for “ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: other”. This protest was timely filed on May 18, 2000.

ISSUE:

Whether the “Treasured Heart Box” is classifiable as a festive article within heading 9505, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System are the official interpretation of the Harmonized System at the international level. The ENs, although not dispositive provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings and legal notes under consideration are as follows:

Note 2(k),

Chapter 69 This section does not cover articles of

Chapter 95.

6912.00 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:

6912.00.50 Other

6913 Statuettes and other ornamental ceramic articles

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

Articles for Christmas festivities and parts and accessories thereof

9505.90 Other:

9505.90.60 Other

Counsel for the importer contends that the “Treasured Heart Box” is classifiable as a festive article within heading 9505, as it meets the requirements of Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest) and 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). At liquidation, the merchandise was classified as ceramic tableware within heading 6912, HTSUS.

EN 69.12, HTSUS, indicates that heading 6912 provides, in pertinent part, for “ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.” This heading also includes “other household articles such as ash trays, hot water bottles and matchbox holders”, and excludes “statuettes and other ornamental articles of heading 6913.” See EN 69.12 at 1006.

Counsel also contends that the merchandise is a functional vase which is imported for “exclusive use as a flower holder [to contain a specific arrangement to be] sold by Teleflora and its affiliates forValentine’s Day.” We do not agree. Use as a vase would be fugitive. It is clearly not a traditional vase because it has a cover, a feature not found on vases. Further, the article’s advertisement indicates that the importers acknowledge its yearlong use as a trinket box, as noted by the description which reads as: “a red hot ceramic treasure box that sparkles with a pretty gemstone. The keepsake heart will give her a special place to hold other tokens of your love for years to come.”

Because of its ornamental and utilitarian aspects, we also consider heading 6913 which provides for “statuettes and other ornamental articles”. ENs to heading 6913, HTSUS, indicate that heading 6913 covers a “wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments).” See EN 69.13 at 1007. Heading 6913 also provides, in pertinent part, for:

“[A]rticles which have no utility value but are wholly ornamental, andonlysupport or contain other decorative articles, oradd to their decorative effect”. See EN 69.13 at 1007.

In this case, the ornamental design of the box is not the predominant feature. Rather, its functionality as a trinket box is the predominant feature. Therefore, its ornamental aspects do not outweigh its functional/utilitarian use as a trinket box. Therefore, we do not find it to be classifiable as an ornamental ceramic article, and heading 6913, HTSUS, is out of contention.

Counsel further contends that because the article is used during the Valentine’s Day holiday, it is classifiable as a festive article. Heading 9505, HTSUS, provides, inter alia, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS.

Although the “Treasured Heart Box” is potentially described by both headings 6912 and 9505, consideration must be given to relevant section and chapter notes. Note 2(k) to chapter 69, HTSUS, which covers heading 6912, provides that “this chapter does not cover articles of chapter 95”. Thus, if the “Treasured Heart Box” is classifiable under heading 9505, then Note 2(k) to chapter 69 precludes classification under heading 6912 and necessitates classification under chapter 95.

An article may be classified in heading 9505 if it meets the "class or kind" criteria for festive articles as provided for in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997). In this case, the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles," and provided new guidelines for classification of such goods in the heading. It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class of "festive articles". In general, merchandise is classifiable as a festive article in heading 9505, 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 the celebration of, and 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 "festive articles," decorative household articles which are representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 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 articles related to holidays and symbols not specifically recognized 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 Carborundum to determine whether a particular good belongs to the class or kind of “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.

With respect to the “Treasured Heart Box”, it satisfies two of the three Midwest criteria. However, although it is not composed predominately of precious or semiprecious stone and functions primarily as a decoration or functional item, it is not used in celebration of, or entertainment for, a particular holiday (in contrast to, for example, Easter Eggs, Jack-O’-Lanterns, or Christmas Stockings).

A ubiquitous symbol of love and affection, a heart shape can often be found on lockets, playing cards, or providing the shape for a picture frame, to name a few instances. See also HQ 961905, dated September 30, 1999. As applied to the instant merchandise, we do not believe a heart shape, alone, may be limited to a particular holiday and find the instant article to be principally a gift item. It is not only for celebrating Valentine’s Day since it functions more in lieu of a Valentine card, but as a token of affection with a use to hold jewelry, trinkets or knick-knacks. Since its intended use extends beyond a particular day throughout the year, (as indicated by its advertisement), we do not find it to satisfy Midwest’s standard that an article is used for a particular holiday.

We would not dispute that this article may be stocked and sold more around Valentine’s Day than at other times of the year. However, the purchasing of the article is not dispositive that it falls within the class of seasonal festive merchandise. In this and other ways, the “Treasured Heart Box” is quite unlike goods which fall into the class of festive articles. The “Treasured Heart Box” is easily distinguishable from the Valentine heart-shaped, wrought iron wreath in Midwest as the wreath may be displayed each Valentine’s Day as a party decoration as well as a home decorative accent. However, the “Treasured Heart Box”, by contrast, does not possess use limited to Valentine’s Day. Although it would not necessarily be found in the home, it would likely appear in places where there is no hint of a celebration of Valentine’s Day.

In addition, although the “Treasured Heart Box” is sold and delivered to its recipient with a note that reads: “You’re a Treasure”, the note is not a permanent incorporation with the instant article. Thus, any limitation of use is lost. Moreover, the note does not possess words of limitation to Valentine’s Day, such as “Happy Valentine’s Day”, just “You’re a Treasure”. Thus, the instant article fails in this regard.

Although counsel cites New York Ruling Letter (NY) E89948, dated November 26, 1999, and NY D86933, dated February 3, 1999, in its argument for the “Treasured Heart Box’s” classification within heading 9505, we do not find these rulings to support the instant article’s classification as festive.

In NY D86933, a set of six plastic heart-shaped baskets which were packaged for use as Valentine’s Day decorations were classified as festive articles within 9505. These minimally functional hearts were decorated with a printed, heart-shaped, label on both sides bearing phrases “I Love You”, “Happy Valentine’s Day,” and/or contained pictures of Cupid or other Valentine related themes which limited the functionality of the baskets by linking them to Valentine’s Day. Unlike the baskets of NY D86933, the instant article does not contain any Valentine’s Day motifs or phrases which link it to Valentine’s Day. Rather, it is comprised exclusively of a ubiquitous symbol, the heart, which is linked to romance in general, not exclusively limited to Valentine’s Day. Thus, it could be sold and used all year long.

In NY E89948, although the ruling gives no rationale for its conclusion for classifying two Valentine’s Day candle sets as festive articles. We note that both of the candle sets had labeling which stated “Valentine Heart Tapers and Holder’s Gift Set” and “Valentine Heart Pillar Gift Set” which specifically linked the articles to Valentine’s Day. The instant article has no labeling which links it to Valentine’s Day.

We also refer to Headquarters Ruling Letter (HQ) 961905, dated September 30, 1999, in which the importer claimed heart-shaped paperweight articles were “specifically designed, marketed and sold as ornaments forValentine’s Day”. However, Customs determined that the paperweights were classifiable in subheading 3926.40.00, which provides for “statuettes and other ornamental articles.” The paperweights in HQ 961905, like the instant article, were created into a heart shape, but they did not contain any symbols, motifs or phrases limited exclusively for use on Valentine’s Day.

As the subject article is not specifically recognized in Midwest nor in the ICP, we consider whether Carborundum’s “use” criteria may determine whether the “Treasured Heart Box” belongs to a class or kind of “festive articles”.

As to physical characteristics, because the heart is a ubiquitous symbol of affection, the “Treasured Heart Box” has Valentine’s Day associations and does not possess a use specific to Valentine’s Day, but yearlong use.

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. The “Treasured Heart Box”, 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 and environment of sale would be to display and sale the “Treasured Heart Box” in floral shops that will deliver it to recipients during the week of Valentine’s Day. However, because of the heart’s ubiquitous nature, even if the merchandise’s sales are only during the Valentine’s Day holiday season, this is insufficient evidence to establish that its purchase would qualify it within the class of seasonal festive merchandise.

As to the use in the same manner as merchandise that defines the class, the “Treasured Heart Box” is not used in the same manner of merchandise that defines the class, as it would likely stay out all year and would not be put away for future display at the next Valentine’s Day. Because of its non-limited use, it does not belong to a 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. We find that the “Treasured Heart Box” is not designed for use suitable only for sale in connection with Valentine’s Day. 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.

Therefore, as the “Treasured Heart Box” is not part of a class of festive articles within heading 9505, Note 2(k) to Chapter 69 does not apply. Following GRI 1, it is properly classifiable within subheading 6912.00.50, HTSUS, which provides for “ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: other”.

HOLDING:

The “Treasured Heart Box” is classifiable within subheading 6912.00.50, HTSUS.

The 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 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

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