**HQ** 964364

January 9, 2001

CLA-2 RR:CR:GC 964364 TF

**CATEGORY:** Classification

**TARIFF NO.:** 6912.00.50

Port Director of Customs

::: Definition-Term
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: other...other".

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.

10. 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]{.underline}, 122 F.3d 1423 (Fed. Cir. 1997) (*hereinafter*
[Midwest]{.underline}) and [United States v. Carborundum
Company]{.underline}, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976),
cert. denied, 429 U.S. 979 (*hereinafter* [Carborundum]{.underline}). 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
for...Valentine'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,
> and...only...support or contain other decorative articles, or...add 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]{.underline}, 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]{.underline}
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]{.underline} 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]{.underline}, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373
(1976), cert. denied, 429 U.S. 979 (*hereinafter*
[Carborundum]{.underline}). Therefore, with respect to decorative
articles related to holidays and symbols not specifically recognized in
[Midwest]{.underline} 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]{.underline} 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]{.underline} 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]{.underline} 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]{.underline} 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
for...Valentine'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]{.underline} nor in the ICP, we consider whether
[Carborundum's]{.underline} "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