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NY F82967




March 10, 2000

CLA-2-95:RR:NC:SP:225 F82967

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000; 3924.10.5000

Ms. Lorianne Aldinger
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE: The tariff classification of both festive and non-festive drinking cups from China

Dear Ms. Aldinger:

In your letter dated February 7, 2000, received in this office on February 9, 2000, you requested a tariff classification ruling.

A representative sample of the “Drinking Cup w/Flexible Straw,” item #993300, was submitted for our review. The enclosed article is just one of an assortment that includes four styles for which you have submitted a picture. The product is a four-inch high plastic-drinking cup with a flexible straw inserted into a screw-on cap. The instant item is fashioned to resemble a traditional, orange and black, jack-o-lantern. The remaining styles are referred to as a skull, mummy and scarecrow. The skull is fashioned to depict that for which it is named. The mummy portrays a head wrapped in white bandages with eyes exposed. The so-called “scarecrow” is actually designed to resemble an orange jack-o-lantern with a hat on top of his head. According to your letter, the novelty cups will be imported and sold for Halloween.

Drinking cups are usually classified according to their constituent material. However, as a result of the court case of Midwest of Cannon Falls vs. U.S. 96-1271, -1279, certain articles, classified elsewhere in the tariff, may fall within the scope of Heading 9505, provided certain requirements are met. In general, merchandise is classifiable in heading 9505, HTS, as a festive article when the article, as a whole:
is of nondurable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic,
functions primarily as a decoration (e.g., its primary function is not utilitarian); and
is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

Satisfaction of these three criteria is indicative of classification as a festive article. However, please note, that the motif of a product is not dispositive of its classification and, consequently, does not transform an item into a festive article.

The traditional symbols of a jack-o-lantern and skull have been determined to be associated with Halloween, a recognized holiday. These cups possess both decorative and utilitarian characteristics. It is also noted that the cups are molded in the form of a jack-o-lantern and skull, which predicates their use in celebration of, or for entertainment on, the given holiday. Additionally, the cups will be marketed and sold exclusively for Halloween. Based on these findings, it is our opinion that the cups depicting a jack-o-lantern and skull meet the criteria outlined by the court for festive articles within Chapter 95.

In contrast, the cup representing a mummy’s head is not so dedicated for use on Halloween. The “scary” motif of a mummy’s head has a shelf life both before and after the holiday. In fact, it possesses characteristics that have year round appeal. Therefore, this drinking cup would not be eligible for consideration within the festive provision.

The “Drinking Cup w/Flexible Straw” assortment will have two separate tariff classifications as follows:

The applicable subheading for the jack-o-lantern, skull and “scarecrow” drinking cups, will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: other. The rate of duty will be free.

The applicable subheading for the mummy drinking cup will be 3924.10.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for tableware, kitchenware, other household articles of plastics: tableware and kitchenware: other. The rate of duty will be 3.4 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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