CLA-2 RR:CR:GC 961874 JGB
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: Various Halloween-Related Festive Articles; Midwest of Cannon Falls, Inc. v. United States;
Dear Mr. Simon:
This is in response to your letter of April 27, 1998, to the Customs National Commodity Specialists Division, New York, on behalf of Midwest of Cannon Falls, Inc., in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on ten prospective importations. The items are to be manufactured in China or India.
Your letter, together with the samples, was referred to this office for reply. Supplementary arguments were made at meeting at Headquarters on June 10, 1999. At that meeting you requested additional time to provide additional arguments. By FAX dated September 13, 1999, you have informed us that you will not be supplementing your submission with respect to the “Jack-O’-Lantern Basket” and the “Halloween Hinged Box”, the articles remaining in contention from this case. We regret the delay in providing this response.
FACTS:
The articles considered in this decision are in four groups or categories. The first group consists of five styles of votive candle holders, all claimed to bear some form of a Halloween motif. The second group consists of three styles of taper candle holders with a claimed Halloween motif or design. The third is a single representation of a wooden “Jack O’Lantern Basket.” The fourth is identified as a “Halloween Hinged Box” of porcelain.
Group one consists of: (1) the Halloween Votive Candle Holder (assortment of three styles), item 19828-5; (2) the Bat Votive Candle Holder, item 24449-4; (3) the Halloween Votive Lantern, item 24398-5; (4) the Ghost Votive Candle Lantern, item 19768-4; and (5) the Luminary Face Votive Candle Holder, item 19884-1.
Item 19828-5 consists of containers made of earthenware. One is colored orange with a “cutout” face of a carved jack-o’-lantern on one side. Another is white with a “ghost” face cutout on one side, and a third is black with the face of a cat on one side. The holders are in the shape of a Halloween trick or treat bag with an open top and, according to the catalogue, measure approximately 3 inches in width, 2-1/4 inches in depth and 3-1/4 inches in height. They accommodate tealights, which when burning, will cause a pattern of light to shine through the article. They do not appear to provide any appreciable light to a room.
Item 24449-9 is an ordinary votive candle holder or stand constructed of a metal frame with three legs and a circular metal “rail” at the top to contain the glass cup that holds the votive candle. The distinguishing feature is that “draped” from the upper metal rim to one foot is a stylized wire cobweb, while a metal bat and metal spider are affixed to the side, against the area where the candle will be placed. The article measures approximately 3 inches in diameter and stands approximately 4-1/4 inches high. The Halloween-related elements affixed to the candle holder immediately distinguish the article from an ordinary candle holder.
Item 24398-5 is another assortment of three. Each measures approximately 4-1/4 inches in diameter and stands approximately 6 inches high. Each item is a cylindrical container or canister with cutout facial features of a ghost, a bat, or a witch. The bat model has wings protruding from its side and bat ears protruding from the top. The ghost has arms protruding from its side and a hat extending from the top. The witch has a pointed witch hat extending from the top of the container. The container accommodates a votive or tea light that when burning will illuminate the faces of the named figures.
Item 19768-4 appears to be a complete lantern with metal sides and cutouts of ghost designs. The article is a cube with a metal pointed roof on top and a hole to permit the candle heat to escape. On top is a ring for hanging to a cord or garden yard stake (sold separately). Inside the lantern is a place for a votive light. The candlelight given off is minimal, but sufficient to illuminate the outlines of the ghost figures on the four sides of the lantern. The article measures 7-1/2 inches square and 9-1/2 inches high.
Item 19884-1 is another metal canister-type luminary candle holder, one style measuring 7 inches high and the other measuring 8-1/4 inches high. One has a black cat face with cutouts for the eyes and mouth with ears protruding over the canister. The other style is a jack-o’-lantern with the standard cutout face and a stem protruding above the upper rim. A burning votive candle would cast light through the cutout portions.
The second group contains the taper candle holders. Item 13519-8, the “Spooky Spider Web Taper Candle holder” is a three branch candelabrum of sturdy metal wire in an asymmetrical curlicue free-form design. At each candle cup or socket is a bat decoration and a spider web joins two of the branches, accompanied by its spider hanging from the other branch. The candle holder stands 14 inches tall and measures 2 inches deep by 8 inches in width. Item 24451-7, the “Spooky Spider Web Single Taper Candle holder,” measures 7-1/2 inches tall by 4-3/4 inches wide and deep. It is similar to the previously described article, but holds only one taper. Item 19904-6, the metal “‘Boo’ Taper Candle Holder” is made of heavy wire in the form of the outline of a ghost, standing approximately 12-1/2 inches high. At the place for the head is a pumpkin outline in orange with eyes and mouth of the same wire material and in the center of the body is the word “BOO”, also in orange. The entire article is affixed to an oval metal stand. The article, which holds two candles, stands approximately 11-1/4 inches high by about 8 inches wide and 2-1/2 inches in depth.
The third category, the Jack-O’-Lantern Basket, item 24757-0, measures 4 inches by 5 inches at its base, by 7-1/2 inches high. It is an open-topped box made of wood with a wire handle fitted across the top. The small end is made to suggest a picket fence with Jack-o’lantern-type faces stenciled on it. The box is shown in the catalogue filled with cookies.
The fourth category is the Porcelain Halloween Hinged Box, item 19869-8. This porcelain box is in the form of a book. The figure’s title is “Spells and Potions.” It measures 1-1/2 inch by 1 inch and is approximately 1 inch wide. On top of the book as part of the porcelain is a wizard’s hat which is decorated with white dots, a crescent moon on its top and a magic wand. On the brim of the hat is a Jack-O’Lantern with a frog sitting on top.
The articles are said to be associated with Halloween and will only be displayed and used during the Halloween festival.
ISSUE:
Whether the described merchandise, votive candle holders, taper holders, wooden box, and porcelain hinged box 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 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.
The variations of the merchandise present several different issues. With respect to group one, the votive candle holders and lanterns, the principal questions are whether the articles are functional, and if so, do they present a recognized symbol of the three dimensional figure. With group two, the Halloween tapers, there is the functional question and the three-dimensional consideration, as well as the question of the recognized symbol. With respect to category three, the principal question is whether there is a symbol of a recognized holiday present and whether the thing is decorative. With respect to the fourth category, the principal question is whether it is used to decorate the home and whether it corresponds to the Carborundum tests.
In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The following analysis is presented by group or category:
Group one: The votive candle holders and lanterns are all decorative articles which are not principally utilitarian. While the articles hold a tealight or small votive candle, the purpose of the candle is to illuminate the decorative article, not to provide light to a room. Even if they were considered utilitarian, they all have a motif associated with witches and Halloween and they are three-dimensional. The Carborundum factors are clearly met in the manner of sale, advertisement, and expectations of the user.
Group two: The taper candle holders are closer to utilitarian articles in that they hold candles and the candles are apt to light a room. However, as utilitarian articles, they are three-dimensional in the sense that they are by their thick wire or wrought iron construction solid objects that have more than a holiday motif pasted or painted on them. The articles meet the Carborundum standards in terms of marketing, sale, expectation of the user. However, only the “‘Boo’ Taper Candle holder” presents the motifs and symbols mentioned in the ICP, namely, the outline of a ghost, the word “Boo” and a pumpkin head. The other two candle holders have spiderwebs, spiders, and bats, which in the context of the Carborundum factors serve as acceptable symbols of the Halloween festive holiday.
Category three: This box individually would be used by the consumer to decorate the home at Halloween time as well as to dispense food or “treats” to guests. However, 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 box is merely a decorated box with some jack-o’-lantern faces painted or stenciled on it. We regard this as a box used to serve food or hold other desirable articles and, as such, it would fall into the class of goods of decorative household articles of wood. Such boxes, when decorated or painted in another manner might be used to hold flowerpots or potted lilies in the spring, or serve as a gift box for seed packets. The point is, the class is defined by construction and decorative nature of the box, not by what happens to have been painted on the side. We agree that the ultimate purchaser would have the expectation of using the article to decorate or to serve or store food. The channels of trade would be in stores selling decorative items. Although the environment of the sale appears to be as part of a holiday sales promotional effort, we do not regard the principal use of this class of goods as a Halloween decoration.
Category four: The porcelain box is decorative; however, we do not see the article as being exclusively of the class of festive articles to be used for Halloween. Instead, they belong in a class of collectibles that are sold all year long and are advertised for sale in the collectibles catalog issued by Midwest of Cannon Falls, as well as the Halloween catalogue. Thus, while we do not dispute the basic statement offered by the importer, there are additional facts that determine the classification. The hinged porcelain box is classified with other collectible porcelain boxes in subheading 6913.10.50, HTSUS, the provision for “Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.”
HOLDING:
The articles in group one, the Halloween votive candle holders and the Halloween lanterns are therefore 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.”
The articles in group two, the Halloween taper candle holders, are also 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.”
The article in category three, the jack-o’-lantern basket, is classified in heading 4420, HTSUS, specifically in subheading 4420.90.80, HTSUS, the provision for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Other: Other.”
The article in category four, the hinged porcelain box, is classified in heading 6913, specifically in subheading 6913.10.50, HTSUS, the provision for “Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division