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HQ 964896




April 16, 2001

CLA-2 RR:CR:GC 964896 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.10.50

Mr. Al Dwek
TS Group Inc.
109 Phillips Avenue
Deal, NJ 07723

RE: Acrylic matzoh box; NY F83489; Festive article; Household article of plastic; HQ 963701; Midwest of Cannon Falls, Inc. v. United States.

Dear Mr. Dwek:

This is in response to your letter of December 30, 2000, requesting reconsideration of New York Ruling Letter (NY) F83489, issued to you on March 20, 2000, by the Customs National Commodity Specialist Division, New York, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of an acrylic matzoh box (“matzah box”). Your letter and sample acrylic matzah box were forwarded to this office for reply.

FACTS:

The subject article is identified as a “matzah box.” It is a container made to hold “unleavened bread” made from flour and water, baked flat, and easily crumbled. During the Jewish festival of Passover, matzah is eaten to commemorate the Israelites’ liberation from slavery in Egypt. The flat, unleavened bread is associated with the haste with which the Israelites had to flee bondage, such that their bread had no time to rise. Thus, during Passover, only matzah, and inter alia, no leavened bread product, is to be eaten. Matzah is widely sold for the Passover holiday, although it is produced, marketed, and sold in supermarkets nationwide, throughout the rest of the year.

The subject article is made from acrylic plastic. It measures approximately 4 inches high, approximately 12.5 inches in diameter, and is meant to hold a stack of matzot (plural of matzah). On the exterior surface of the top acrylic sheet of the container, are two hinges that attach the top to the rest of the box, forming a lid. The lid provides access to fill, empty, and clean the container. The three-letter Hebrew word, “matzah,” is stamped in Hebrew letters on the container lid.

You state that the matzah box is only used during the Jewish holiday of Passover, in particular, at holiday meals. The matzah box is marketed as a holiday matzah container for use during the Passover holiday, however, it is available at certain ethnic and religious gift shops and on several internet websites, months before and after the holiday.

ISSUE:

Whether the “matzah box” is classifiable as, “kitchenware,” or an “other household” article of plastics at heading 3924, HTSUS, or as a “festive article” in heading 9505, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 (ENs) 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.

The HTSUS provisions under consideration are as follows:

Tableware, kitchenware, other household articles and toilet articles, of plastics:

Tableware and kitchenware:

Other.

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Heading 3924, HTSUS, provides for articles of “[t]ableware, kitchenware, other household articles . . ., of plastics[,]” which covers merchandise similar to the subject “matzah box” container. The ENs to heading 3924, provide that the following articles of plastics are covered: “(B) [k]itchenware such as . . . storage jars, bins and boxes (tea caddies, bread bins, etc.) . . ..” The “matzah box” is similar to articles classifiable as kitchenware or “other household articles” of plastic, e.g., a storage bin or box. However, chapter 39, Note 2(v), states, that the chapter does not cover,”[a]rticles of chapter 95[.]”

The question therefore arises whether the matzah box is provided for at heading 9505, HTSUS. Heading 9505 provides, in pertinent part, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS. In Midwest of Cannon Falls, Inc. v. United States, 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 considered as “festive articles,” certain items which were advertised and sold to consumers before the particular holiday with which they were associated. It was determined that the items must be used in celebration of, and for, entertainment on a joyous holiday. In NY C88308, dated June 19, 1998, and HQ 962128, dated October 18, 1999, Customs recognized that the Passover holiday meets the court’s standard of a joyous holiday.

In 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.

An article’s satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article, however, is not dispositive of its classification and, consequently, does not transform an item into a festive article. Thus, stamping the letters of the word “matzah” in Hebrew or English, would not transform this acrylic household container into a festive article. A matzah box without the word “matzah” laminated or stamped on it, would be a plastic household container. It would not be used to add to the festive character of the holiday meal table.

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 Informed Compliance Publication, “Classification of Festive Articles,” 32 Customs Bulletin, 2/3, (January 21, 1998), at page 177 (“IV. Additional Motifs, Symbols or Representations, A. Decorative Items”).

In considering the Midwest standards, we note that the matzah box is not made predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The matzah box holds food, specifically “unleavened bread” called matzot, to be eaten during the Passover holiday. However, matzah may also be, and is in fact, eaten throughout the year. The consumer is not restricted from purchasing more than one matzah box, and the article is made of durable acrylic plastic, designed for re-use over many years.

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 (1976), (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 known as “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.

A festive article’s primary function is supposed to be decorative, as opposed to predominantly utilitarian. The matzah box is used to keep and protect the matzah, and does serve a very useful function. The lid on the box is designed to open, and close after each use, thereby limiting direct exposure to the air, moisture, and insects. The matzah box limits the dispersal of crumbs once the original matzah cardboard box packaging is opened and discarded. The use of transparent acrylic provides a clear functional benefit enabling the user to see how full the container is, and when it needs to be refilled. Although the matzah box may be placed on the holiday meal table, it is in fact, used most of the time to store the matzah, on a kitchen countertop, or on the kitchen table. It is not a three-dimensional representation of an accepted symbol of the Passover holiday.

A basic axiom of customs law is that goods are classified in their condition as imported. In other words, we must determine if the matzah box, in its condition as imported, is recognized in that state as a “festive article” used in the celebration of a particular Jewish holiday. The article is imported as an acrylic food container with hinged lid and the Hebrew word “matzah” printed on the lid. Although the word “matzah” evokes an association with the holiday of Passover, it does not “reserve” the subject article for use only at that time. Stamping the Hebrew “devash” (honey) on a honey container would not render it a festive article for the Jewish New Year, when apples and honey are traditional foods. We note that there is no religious, or other requirement, that matzot be placed in a plastic acrylic box on Passover.

As evidence of the channels of trade, a list of bookstores and gift shops where the article was provided. A list of names and telephone numbers, does not alone substantiate that the article is sold during a limited period of time or unavailable elsewhere in the stream of commerce. It was ascertained that a number of internet websites and specialty Jewish gift-bookstores, do offer matzah boxes for sale, and the article, like the matzah it would contain, may be obtained throughout the year. While a matzah box may also be used for holiday meals held in a synagogue proper, the primary use is intended to be in the home by an individual or family.

Unlike the crystal blessing cup subject of HQ 962128, dated October 18, 1999, or the “Seder plate” subject of NY C88308, dated June 19, 1998, the matzah box’s primary function is utilitarian, and not celebratory, or decorative. It is not tied to a particular holiday prayer or ritual ceremony. It is the matzah that is used for, and in furtherance of, the celebration of the Passover holiday, not the acrylic matzah box. Unlike the “Seder plate” discussed in NY C88308, with its ceremonial, celebratory role in the central festive meals of Passover (Seders), the matzah box has an overriding utilitarian function. The “matzah box” is primarily used to store matzot, to hold and protect them from breakage, and to reduce cleanup created by the crumbs they create in the home.

The Carborundum factors taken together point to a conclusion that the subject article is not within the class of “festive articles.”

HOLDING:

The matzah box is classifiable at subheading 3924.10.50, HTSUS, “[t]ableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other[.]”

NY F83489 is affirmed.

Sincerely,

John Durant, Director

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