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HQ 962103

June 19, 2000

CLA-2 RR:CR:GC 962103 JGB


TARIFF NO.: 6702.90.35

Mr. Joel K. Simon
Ms. Despina Keegan
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048

RE: Reconsideration of NY C88310; Heart-shaped Artificial Flower Arrangements in Shadowbox; Midwest of Cannon Falls, Inc. v. United States

Dear Mr. Simon and Ms. Keegan:

This is in response to your letter of August 5, 1998, on behalf of Russ Berrie, Inc., requesting reconsideration of New York Ruling Letter (NY) C88310, issued June 29, 1998, by the Customs National Commodity Specialist Division, New York. You initially requested this ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on a Valentine’s Day Shadowbox, identified as item number 15273(a).

Supplementary arguments were made at a meeting at Headquarters on June 10, 1999. At that meeting you provided a sample and a catalogue.


You refer to the article at issue as a “Valentine’s Day Shadowbox” consisting of a wooden frame measuring approximately 6-5/8 square by 2¼ inches deep. The front of the box is covered by a window made of clear acrylic sheet. The item depicts a red rose floral decoration in the shape of a heart. The message on the front of the shadowbox reads “. . . and the greatest of these . . . is love.”

You state that the article is designed to be displayed as a decorative ornament during the Valentine’s Day holiday and that it is a decorative item specifically designed, marketed, and sold as an ornament for a specific holiday, Valentine’s Day. You state that the New York ruling should be revoked because it failed to identify the shadowbox as a festive article, classifiable in heading 9505, HTSUS.


Whether the heart-shaped artificial flower arrangement in a shadowbox is classified in heading 9505, HTSUS, as festive articles, or as artificial flowers in heading 6702, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 (EN) 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 article consists of two main components, the artificial flower portion and the shadowbox frame. Therefore, the article is not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, 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: . . . when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “ . . . composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

The EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this instance, the artificial flower component is the primary component of the composite good in terms of the role of a constituent material in relation to the use of the goods. That is so because the artificial floral portion is the feature constituting the decoration, while the frame and shadowbox serves a secondary function of enhancing the basic article. Because the heart-shaped artificial flower component supplies the essential character of the good, the classification of the artificial flower component will govern the classification of the whole good.

Since the component which provides the essential character is an article of artificial flowers, we look to chapter 67, HTSUS, which covers artificial flowers. Heading 6702, HTSUS, provides for “Artificial flowers, foliage and fruit and parts thereof; articles made of artificial flowers, foliage and fruit.” Articles of artificial flowers other than plastics, if of man-made fibers, are provided for in subheading 6702.90.3500, HTSUS.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS. Although the heart-shaped artificial flower arrangement is potentially described by both heading 6702 and heading 9505, consideration must be given to relevant section and chapter notes. Note 1(e) to chapter 67, HTSUS, which covers heading 6702, provides that this chapter does not cover carnival articles of chapter 95. Thus, if the heart-shaped artificial flower arrangement is classifiable under heading 9505, as a carnival article, then Note 1(e) to chapter 67 precludes classification under heading 6702 and necessitates classification under chapter 95. We first consider the claim of festive under heading 9505, HTSUS, then the potential for carnival goods under the same heading.

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 the Informed Compliance Publication of the Classification of Festive Articles published in the 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.

Customs views this article as principally a gift item, not really used in the celebration of Valentine’s Day. It functions more in lieu of a Valentine card and would be given from one person to another as a token of affection. While it could be used to decorate the home, a standard employed by the trial court in Midwest, it appears to be designed with personal significance so that it might be displayed in the recipient’s personal quarters. The written statement on the front (“greatest of these.. . . is love”) suggests that the gift of the article would have personal sentiment attached, so that it is doubtful that the article would be put away after the holiday and brought out again the next year.

In this respect, the heart-shaped artificial flower arrangement shadowbox, while decorative, is used neither for celebration nor entertainment on a holiday, in contrast to, for example, Easter Eggs, Jack-O’-Lanterns, or Christmas Stockings. Moreover, it is not associated with a particular holiday in the sense that the heart is a ubiquitous symbol, sometimes found on lockets, on playing cards, or providing the shape for a picture frame, to name a few instances. We would not dispute that more of this articles may be stocked and sold around Valentine’s Day than at other times of the year. However, the purchasing of the article does not mean that it falls into the class of seasonal festive merchandise. In these and other ways, the Valentine articles are quite unlike goods falling into the class of festive articles. The heart-shaped artificial flower arrangement are easily distinguishable from the Valentine Heart Shaped Wreath of wrought iron from the Midwest case in that the wreath might be brought out each Valentine’s Day for a party decoration and it would principally be used to decorate the home. The heart-shaped artificial flower arrangement, by contrast, would likely be displayed all year in places where there is no hint of a celebration of Valentine’s Day.

The article also fails to meet several of the Carborundum standards:

As to physical characteristics, the heart shape of the artificial flower arrangement has Valentine’s Day associations, but this article has no practical limitations to use in and around that day.

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. In fact, the particular sample provided contains 19 red rosebud artificial flowers which are assembled to form a heart shape. This heart-shaped artificial flower arrangement, therefore, 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 would be in gift shops along with stuffed bears, mugs and soft sculpture, not particularized to Valentine’s Day merchandise.

The environment of the sale is not apparent on its face; however, Customs does not dispute the claims provided by the importer that “[t]his particular items . . . will be displayed and sold as Valentine’s Day items . . . [and] . . . will be advertised in the Russ Berrie 1999 Valentine’s Day catalog.”

As to the use in the same manner as merchandise that defines the class, this article is not used in the same manner of merchandise that defines the class, because it would likely stay out all year and would not be put away and displayed for seasonal/holiday decoration, distinguishing it from true articles belonging in the 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. While it is claimed that it would be “illogical” and therefore “unlikely” to use this product in any way except as a Valentine’s Day decoration, Customs disagrees that the product is so designed and used as to be suitable for sale only in connection with the holiday. 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.

As to recognition in the trade of this use [as a festive article], Russ Berrie, Inc., claims that these particular items will be sold in the Valentine’s Day catalog; however, sale at one time of year does not preclude sale or use at another time of year, or indiscriminately throughout the year. In addition, heart-shaped trinkets, knick-knacks, and similar objects which form a class to which the instant merchandise belongs, are recognized by consumers as being available and used throughout the year.

As to the possibility that the heart-shaped artificial flower arrangement shadowbox is a “carnival” article, we note that no claim of this type has been made. The article does not have the general characteristics of carnival goods, such as being “generally made of non-durable material.” See EN(A) to heading 9505, HTSUS. Also, it does not generally conform to the types of goods listed in the EN (A)(4) to heading 9505, being “Throw-balls of paper or cotton-wool, paper streamers (carnival tape), cardboard trumpets, “blow-outs”, confetti, carnival umbrellas, etc.” This article is durable and used inside the home entirely outside of a carnival or party context. Therefore, it would not qualify for the “carnival” provisions of heading 9505 and would not be excluded from heading 6702 by the chapter note cited.

Because the heart-shaped artificial flower arrangement shadowbox is also not part of the class of festive articles, it is ineligible for classification in heading 9505, HTSUS, and is properly classified in heading 6702, HTSUS, as an article made of artificial flowers. Articles of artificial flowers other than plastics, if of man-made fibers, are provided for in subheading 6702.90.3500, HTSUS.


The heart-shaped artificial flower arrangement shadowbox heart-shaped paperweights, item 15273(a), is classified in subheading, 6702.90.3500, HTSUS.

NY C88310 is affirmed.

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