CLA-2 RR:CR:GC 961889 JGB
Ms. Lori Aldinger
Import Manager
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105
RE: “Halloween Loot Scoop” Festive Article; Midwest of Cannon Falls, Inc. v. United States
Dear Ms. Aldinger:
This is in response to your letter of April 27, 1998, to the Customs National Commodity Specialists Division, New York, on behalf of Rite Aid Corporation, in which you request a ruling under the Harmonized Tariff Schedule of the United States (HTSUS), on two versions of a “Halloween Loot Scoop” item #980782. Following a telephone conversation with a member of my staff, we understand that you expect to be importing only one version of the article. Therefore, this ruling applies only to that article described below. The item is to be manufactured in China.
Your letter was referred to this office for reply. We regret the delay in providing this response.
FACTS:
The “Halloween Loot Scoop” consists of a plastic shaft with a stylized open “paw” of plastic affixed to the end of the shaft. In the middle of the paw is an opening estimated to be around 5 inches in diameter. This opening forms the rim of a nylon textile bag that hangs down from the rim and is used for containing the candy or other “loot” collected during the process of playing “trick or treat.” In use, the trick or treater will extend the scoop (the bag with the handle) into the open door so that the candy donor can deposit the treat. Then the scoop can be easily withdrawn for reinsertion at another door. The bag appears to be about 10 inches in depth. The Loot Scoop is orange with a round orange bag hanging down from the paw. The bag, when partially filled, would resemble a jack-o’-lantern.
ISSUE:
Whether the loot scoop is classified in heading 6307, HTSUS, as other made up textile articles, or in heading 9505, HTSUS, as festive articles.
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 orange jack-o’-lantern loot scoop is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The loot scoop is a functional, three-dimensional representations of the jack-o’-lantern, an accepted symbol for the recognized holiday of Halloween. Therefore, it qualifies as a festive article of heading 9505. If it failed to meet these standards, it would be classified in heading 6307, HTSUS, the provision for “Other made up [textile] articles, including dress patterns.” Under GRI 3(a), we are directed to choose the more specific provision of two or more headings in which the good may be prima facie classified.
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 filled orange bag becomes a three-dimensional jack-o’-lantern. The expectation of the ultimate purchaser, the channels of trade and the environment of the sale all indicate that the article is intended to be sold and used for the recognized holiday of Halloween. The Carborundum factors are met in all respects.
HOLDING:
The orange jack-o’-lantern shaped “Halloween Loot Scoop” is classified as a festive article 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