CLA-2 RR:CR:TE 958917 GGD
Mr. Mauritz Planby
Associated Merchandising Corporation
1440 Broadway
New York, New York 10018
RE: “Halloween Candy Basket;” Festive Article; Not Other Made Up
Textile Article; Midwest of Cannon Falls, Inc. v. United
States; Revocation of DD 810498 by Operation of Law
Dear Mr. Planby:
In District (now Port) Ruling Letter (DD) 810498, issued May 26, 1995, an article described as a “Halloween Candy Basket” was classified in subheading 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other.”
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.
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FACTS:
At the time DD 810498 was issued, the sample was described as a decorative basket composed of plaited bamboo covered with textile material, measuring approximately 6 inches in diameter and 7 inches in height. The item’s exterior, interior, and handle, were covered with polyester fabric, but only the exterior portion was cushioned with a polyester batting. The article’s shape resembled that of a pumpkin and its exterior featured a caricature representing a jack-o’-lantern.
ISSUE:
Whether the “Halloween Candy Basket” is classified in heading 6307, HTSUS, as an other made up textile article; or in heading 9505, HTSUS, as a festive article.
LAW AND ANALYSIS:
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.
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,
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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 “Halloween Candy Basket” is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The item is a functional, three-dimensional representation of a jack-o’-lantern, which is an accepted symbol for the recognized holiday - Halloween. The article also may be used for an activity associated with that holiday, that being, trick-or-treating.
This letter is sent to you as a courtesy, to advise you that this office is applying the principles, rationale, and criteria used by the Court in Midwest, and that rulings issued by Customs under the provisions of 19 CFR 174 or 177, that are inconsistent with the Midwest decision, are revoked or modified by operation of law. In this instance, by operation of law, the Midwest decision revoked DD 810498. The “Halloween Candy Basket” is therefore classified as a festive article under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUSA, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other,” with a general column one duty rate of free. Also see Headquarters Ruling Letters (HQ) 962570, issued February 18, 1999, HQ 962321, issued February 10, 1999, and HQ 961521, issued February 9, 1999.
Under the Customs Modernization provisions of the NAFTA Implementation Act, it is the responsibility of the importer to classify and appraise merchandise. The U.S. Customs Service, although under no obligation to inform you of the foregoing, is in the spirit of informed compliance notifying you of the consequences of the Midwest case. This letter and attachment
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should be brought to the attention of Customs when entry is made for your merchandise, either by referencing this ruling letter or by providing a copy.
Sincerely,
John Durant, Director
Commercial Rulings Division