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HQ 963285

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April 9, 2002

CLA2 RR:CR:GC 963285 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4823.90.65

Area Director of Customs
Attn.: Joe DiSalvo
Liquidation and Protest Branch
U.S. Customs Service
Building 77 JFK Intl Airport
Jamaica, New York 11430

RE: Protest 1001-98103990; "Steamer Trunk (3 in 1)" and "Hatbox (5 in 1)" Decorated boxes; Festive articles

Dear Area Director:

This is our decision on Protest 1001-98103990, filed by counsel on behalf of Tri-Coastal Design, against your classification of "Steamer Trunk (3 in 1)" and "Hatbox (5 in 1)" decorated boxes under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated on July 6, 1998, and the protest timely filed on October 2, 1998.

FACTS:

The merchandise at issue consists of two types of paper-covered decorated boxes. The type designated "steamer trunk" is rectangular and comes in three sizes such that they can be "nested" one inside the other. They are not a "real" steamer trunks, but rather boxes of the following approximate dimensions: 11" long x 7½" wide x 6" deep; 13" long x 9" wide x 6½" deep; and 15" long x 10" wide x 7½" deep. Each box has a lid of appropriate dimensions. The other type, designated "hatboxes", come in a group of five and are imported in diminishing sizes so that they, too, can be nested one inside of the other. The "hatboxes" are round with the largest box having a diameter of approximately 15½" and a depth of approximately 7" and the smallest having a diameter of approximately 11½" and a depth of approximately 5½". The "steamer trunks" are sturdy and are reinforced with brass-colored metal corner protector on the exterior. They are equipped with sturdy metal handles on each end in a manner similar to a strong box or letter storage case. The "hatboxes" may be carried individually by a sturdy textile braided cord, attached to opposite sides of the perimeter, that spans the top of the box. Because the boxes and trunks are covered with a paper having a Christmas design, the protestant is claiming that the articles are festive articles of heading 9505, HTSUS. The protestant states that the articles are marketed, sold and displayed only during the holiday season for which the articles were designed. The protestant further notes that "the articles, themselves would be out of place, being displayed at any time but during the Christmas season." In addition, the protestant indicates that "[a]lthough the boxes can be used for off-season storage, their principal use, based on the Christmas design, is to be displayed in the open during the holiday season. The boxes are used to contain any number of items that can be, and are, intermittingly utilized during Christmas." A sample was provided of the boxes and of the varieties of paper used to cover the merchandise.

The protestant claims classification for the articles in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles. . . parts and accessories thereof: Other: Other.”

You classified the containers in subheading 4823.90.65, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Of coated paper or paperboard: Other."

ISSUE:

Whether the "Steamer Trunk (3 in 1)" and "Hatbox (5 in 1)" decorated boxes are classified in heading 9505.90.60, HTSUS, as a festive article other than an article for Christmas festivities or whether they are classified as other articles of paperboard in heading 4823.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, 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.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10, HTSUS. Articles for other than Christmas festivities are provided for in subheading 9505.90, 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 Customs Bulletin, Volume 32, Numbers 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 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 “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.

The decorated boxes under protest appear to be utilitarian or functional articles because they appear to designed to store Christmas decorations and other Christmas goods. They do not appear to be packaging for Christmas gifts because such packaging is ordinarily designed to be discarded after its first use. By contrast, the instant goods would serve as containers kept in closets and storage areas, designed to last for many years. The "hatboxes" are, of course, not designed to protect and store hats, but they are of the same material and design commonly used in hatboxes. Those boxes were designed to provide years of use. As a container for Christmas goods, the articles would fail to meet the standard applied to festive articles listed in #2, supra, namely, they do not "function[ ] primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday" because they do not decorate the home, serve as wrapping for presents, or do anything besides provide a safe place to keep Christmas goods when they are not "out" in the home serving their decorative function. In the lack of any supporting evidence presented to the contrary, Customs finds the instant goods are not principally used to decorate the home during the Christmas season. The physical characteristics of the instant goods, by contrast, indicate that the goods belong to a class of goods used principally for storage and safekeeping. They are boxes with decorative paper attached.

The protestant cites Headquarters Ruling Letter (HQ) 963976, dated May 11, 2001, which ruled on a "decorative citron or etrog box" used during the celebration of the Jewish holiday known as Succot. It is argued that because the instant Christmas boxes are associated solely with the Christmas holiday, they therefore should be treated as festive articles, even as the Succot citron box is classified as a festive article. The argument loses its force when it is noted that to those celebrating Succot, the citron must be perfect in stem and body and that the ornately decorated box with the citron inside is an integral part of the celebration of the holiday and the use of the box enhances the celebration. By contrast, the use of the instant boxes is for storage before or after the celebration of the holiday, or, at best, for commercial display or packaging. The use is not for the presentation of an essential symbol of the holiday.

As indicated, supra, the Midwest court looked at Carborundum evidence to help identify whether a particular article conformed the uses expected of festive articles.

As to physical characteristics, these articles are in every respect storage containers, purchased empty, and designed to store for safekeeping articles of the owner's choosing. Although the boxes are decorated with a flat two-dimensional design, they are not designed to decorate the home for a particular holiday as the whole range of Christmas decorations might do. Customs recognizes the Christmas themes printed on the decorative paper pasted on the boxes and this leads to a conclusion that the articles would be principally used to store Christmas goods. The form and construction of the boxes, however, would not limit their use to Christmas goods and the boxes would be equally protective, regardless of the type of goods stored in them.

As to expectation of the ultimate purchaser, the boxes appear to do nothing except to provide a means of storing Christmas decorations. However, there is no limit to the usefulness of the boxes in any manner different from the usefulness of ordinary undecorated boxes.

With respect to the channels of trade, the importer is a wholesaler/distributor and it is not stated how the goods would be sold. Customs was able to find only one company other than the protestant that offered decorated nested hatboxes and similar boxes for sale. The company is uncertain how the buyers use the products. There is some expectation that the boxes are used by some retailers as risers to display Christmas goods in their stores. In addition, some of the boxes are used by the buyers singly as "basket bases", meaning that they are used in lieu of a basket for holding a collection of gifts put up together for presentation in the manner of a fruit basket. Therefore, they form a type of packaging that may be used after the goods are removed at the discretion of the recipient, similar to the way as a decorative cookie tin would be used.

The environment of the sale, including manner of advertisement, accompanying accessories and display, is not stated. The protestant indicates that the goods are "both marketed, sold and displayed only during the holiday season for which the articles were designed." Even though the articles are claimed to be sold in stores during the holiday season, they do not appear to be the kind of goods that would be displayed for their own sake, in that they appear to function as containers for the safekeeping of Christmas ornaments, Christmas tree lights, and the like.

With respect to the use of the article in the same manner as merchandise which defines the class, this article is used in a manner identical to plain boxes designed for storage. The application of the paper with the Christmas-related design does not transform a box into a festive article.

With respect of the recognition of the trade of its use, although the protestant claims that the "principal use" is for decorative or entertainment purposes, no substantial evidence beyond the claim has been provided. Independent investigation by Customs has not disclosed a principal use, but rather a variety of uses as indicated, supra. The physical evidence is indisputable in that the boxes present characteristics of sturdiness greatly exceeding what would be expected of a merely decorative box that was not intended to hold anything. There has been no additional evidence provided, nor is Customs aware of any, that would shed further light on the trade's understanding of these articles.

The protestant claims that the correct classification is in subheading 9505.90.60, HTSUS. This subheading would provide, in part, for articles that are not articles for Christmas festivities. For the reasons stated, this article fails to qualify as an article of heading 9505, HTSUS, regardless of whether classification would be proposed for the "Christmas" subheading or the "non-Christmas" subheading, within heading 9505, HTSUS.

HOLDING:

The containers are classified in subheading 4823.90.65, HTSUS, the provision for "Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers: Other: Other: Other: Of coated paper or paperboard: Other."

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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

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See also:

• Tariff No.: 4823.90.65 - Articles of coated paper or paperboard, nesi
• Tariff No.: 9505.90.60 - Festive, carnival or other entertainment articles nesoi and parts & accessories thereof nesoi