CLA 2 RR:CR:GC 961946 MMC
Ms. Anne Ornstein
Merchandise Negotiations
Lillian Vernon Corporation
One Theall Road
Rye, New York 10580-1450
RE: Three Dimensional “Santa” and “Jack-O-Lantern” Textile Bags
Dear Ms. Ornstein:
This is in response to your letter of August 27, 1998, to me regarding your April 16, 1998, letter to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for two articles described as three dimensional “Santa” and “Jack-O-Lantern” textile bags under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of each were submitted with your request. Your original letter was referred to this office for reply. We regret the delay in responding.
FACTS:
The subject articles are textile decorative bags. Both are composed of 65 % polyester, 35% cotton shell and a 100% polyester padding. The “Santa” bag, identified as LV#868E, consists of a three dimensional representation of “Santa” complete with hat trimmed with holly. The “Jack-O-Lantern” bag, identified as LV3836, consists of a three dimensional representation of a “Jack-O-Lantern.” The three dimensional aspects of each bag are simulated by contrasting appliques sewn to the bags’ bodies.
You stated that the articles are designed to be used for either collection, dispersion or display of candy or other treats presented at Christmas and Halloween, respectively.
ISSUE:
What is the classification of “Santa” and “Jack-O-Lantern” textile bags?
LAW AND ANALYSIS:
In Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles," and provided new guidelines for classification of articles in the heading. In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article 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 on a review of the Midwest articles, 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 if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 2/3, dated January 21, 1998.
In addition to the above listed criteria, the Court gave consideration to 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). As such, for those decorative and utilitarian articles involving holidays and symbols not specifically recognized in Midwest or the January 21, 1998, Customs Bulletin, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article belongs to the class or kind "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), 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 subject bags have no precious or semi-precious stones, metals or metal clad with precious metal. The “Santa” and “Jack-O-Lantern” bags are functional articles which are three dimensional representations of “Santa” and a “Jack-O-Lantern,” respectively. “Santa” is an accepted symbol for a recognized holiday, Christmas. The “Jack-O-Lantern” is an accepted symbol for a recognized holiday, Halloween. As such, the bags are described by heading 9505, HTSUS, and classifiable as festive articles. See Headquarters Ruling Letter (HRL) 961521 dated February 9, 1999, and HRLs 962512, 961543 and 962531 all dated February 10, 1999.
HOLDING:
The “Santa” and “Jack-O-Lantern” textile bags are classifiable under subheading 9505.90.60, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther:[o]ther."
Sincerely,
John Durant, Director
Commercial Rulings Division