CLA-2 RR:CR:GC 962629 JGB
Area Director
New York Seaport
6 World Trade Center, Room 437
New York, NY 10048
RE: Internal Advice 2/99; Crystal Chanukah Dreidel; Midwest of Cannon Falls, Inc. v. United States
Dear Area Director:
This is in response to your memorandum of February 3, 1999, (CLA-2-NEW: TCBII:204) forwarding Internal Advice Request 2/99, dated December 4, 1998, initiated by counsel on behalf of Rosenthal USA LTD, requesting advice as to the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a Crystal Chanukah Dreidel.
The Dreidel is the subject of a current transaction, entry # 617-0315996-4 (03/07/98) at the Port of Newark. No sample was provided to Headquarters.
FACTS:
The Crystal Chanukah Dreidel is stated to be 3.5 inches long and is composed of 24 percent lead crystal. The article resembles a 4-sided die or spinning top, engraved on each side with a Hebrew Letter representing, when combined, the statement, “[A] Great Miracle Was There.”
Counsel for the importer states that the dreidel is a traditional gift for Chanukah and that it is traditionally associated with the Chanukah celebration that takes place in December on the 25th of the month of Kislev in the Hebrew calendar.
ISSUE:
Whether the Crystal Chanukah Dreidel is classified in heading 7013, HTSUS, as a lead crystal indoor decoration, 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.
Heading 7013, HTSUS, provides for "Glassware of a kind used for ... indoor decoration or similar purposes (other than that of heading 7010 or 7018).” Subheading 7013.91.50, HTSUS, specifically provides for “Other glassware: Of lead crystal: Valued over $5 each.”
Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are specifically provided for in subheading 9505.90, HTSUS.
Note 1(f) to Chapter 70, which includes heading 7013, HTSUS, provides that the chapter does not cover “Christmas tree ornaments and other articles of chapter 95.” Therefore, if the Crystal Chanukah Dreidel meets the standards for classification in chapter 95, the note will preclude classification under heading 7013 and necessitate classification under chapter 95.
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 known as “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.
At issue here is whether the Crystal Chanukah Dreidel corresponds to articles used in celebration of a particular holiday. Customs has recognized the holiday of Chanukah (sometimes spelled Hanukkah) as one of those “particular holidays” that gives rise to certain articles being designated “festive articles” for tariff purposes. See, New York Ruling letters (NY) D85910, dated January 5, 1999, D86108 and D86109, both dated January 14, 1999.
In considering the Midwest standards, the Crystal Chanukah Dreidel is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The Crystal Chanukah Dreidel is purely decorative and does appear to be simply an item used in the celebration of a festive occasion.
With respect to the general criteria set forth in Carborundum and further considered by the Court, we note that in terms of general physical characteristics, the fact that the Crystal Chanukah Dreidel is a symbol of a toy with religious connotations renders it inappropriate for any other type of use except festive occasions.
The ultimate purchaser would have the expectation of using the article in connection with the celebration of Chanukah and at no other time. While the article is decorative and fragile, it is would be used at the Chanukah period only and not throughout the year.
The environment of the sale is unclear. The use of the article in the same manner as merchandise which defines the class is satisfied in that the article will be used only during the Chanukah period along with the 9-light Menorah candelabra. An advertisement supplied from the New York Times shows that the dreidel is generally associated with Chanukah and is offered to the public in that connection.
In view of the Carborundum evidence, the Chanukah crystal Dreidel has been shown to be used in the home during the Chanukah period for decorative purposes, in connection with the celebration of this festive holiday and, therefore, is within the class of festive articles of heading 9505, HTSUS. As an article of heading 9505, it is precluded from classification in heading 7015, HTSUS.
HOLDING:
The Crystal Chanukah Dreidel is classified in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival, or other entertainment articles,...parts and accessories therefor: Other: Other.”
You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, 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