HQ 961874

September 14, 1999

CLA-2 RR:CR:GC 961874 JGB

CATEGORY: Classification

TARIFF NO.: 6913.10.50; 9505.90.60; 4420.90.80

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