CLA-2 RR:CR:GC 962801 JGB
Ms. Despina Keegan
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: Halloween-Related Festive Articles; Midwest of Cannon Falls, Inc. v. United States;
Dear Ms. Keegan:
This is in response to your letter of March 26, 1999, to the Customs National Commodity Specialist Division, New York, on behalf of Russ Berrie and Company, in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on four prospective importations. Your letter, together with the samples, was referred to this office for reply.
FACTS:
This decision considers votive or tealite candle holders all claimed to bear some form of Halloween motif. They include style # 14928 in three designs, style # 14932, also in three designs and style # 16933, referred to as the "Pumpkin Centerpiece." It also considers style # 14931, a metal candle holder composed of four flat jack-o'-lantern figures in the shape of a square with a tea light in the center.
Based on the sample provided, Style # 14928 is a simple metal cup to hold a tealight. Attached to the edge of the cup is a curved metal piece standing about 3 inches with cutouts and painting to simulate a jack-o'-lantern. When the candle is burning, the light would shine through the holes for the eyes, nose and mouth of the jack-o'-lantern. The three varieties are described as Votive Holders in an assortment of three styles, the Bat Votive Holder, the Pumpkin (jack-o'-lantern) Votive, and the Ghost Votive Holder. Even when lit, the votive candles do not appear to provide any appreciable light to a room. They are only decorative lighting.
Style # 16932 is also described as Votive Holders in Bat, Jack-o'-lantern, and Ghost styles. This article is formed from welded wire in a cylinder shape, measuring about 3 inches in diameter by 2½ inches in height. The "Halloween" figures are attached to four sides of the cylinder so that when the tealite, inserted into the cup in the center of the cylinder, is burning, light shines through the holes in the metal figures, illuminating them from behind. Because the metal ghosts, jack-o'-lanterns and bats protrude above and below the cylinder, the overall height of the holders is from 3¼ inches to about 4 inches.
Item # 14933 is a three-tiered metal candle holder with a curved metal jack-o'-lantern figure on each tier with a tealite behind it. It measures approximately 9-1/4 inches in height and is about 8 inches between the two tiers. Each jack-o'-lantern is similar to the figures in style # 14928 in that they are attached to a little cup that holds a tealite. In this instance, the figures are attached to each of the two arms of the candle holder and the center one is attached to the middle of the stem. The container accommodates a votive or tealite that when burning will illuminate the faces of the jack-o'-lanterns.
Style # 14931 is described as an "Antiqued Metal Votive Holder." Of the two varieties within the style, the only one under consideration here is the jack-o'-lantern face, very similar to style # 14932. It measures 3-3/4 inches by 3-3/4 inches. The tealite in the center would illuminate the eyes, mouth and nose holes of the jack-o'-lantern, but the tealite would not be used to illuminate a room.
The articles are said to be associated with Halloween and will only be displayed and used during the Halloween festival.
ISSUE:
Whether the Halloween votive candle or tealite holders, are classified in heading 9505, HTSUS, as festive articles, or elsewhere.
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.
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 on the Classification 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.
In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Regarding functionality, the principal question is whether the votive candle or tealite holders are functional, and if so, are they three-dimensional representations of a recognized symbol of the particular holiday.
The votive candle holders and tealite holders are all decorative articles which are not principally utilitarian. While the articles hold a tealite or small votive candle, the purpose of the candle is to illuminate the decorative article, not to provide light to a room. We regard these articles as principally decorative and by their design as falling into the class of festive articles. See our decision regarding other Halloween votive candleholders, Headquarters Ruling Letter (HQ) 961874, dated September 14, 1999.
The Carborundum factors are clearly met in the manner of sale, advertisement, and expectations of the user.
HOLDING:
Style #'s 14933, 14928, 14932, and the jack-o'-lantern model of style # 14931, all Halloween votive candle or tealite holders are classified as festive articles under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division