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HQ 965161




August 29, 2001

CLA-2 RR:CR:GC 965161 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.60

Stacy L. Weinberg
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 245 Park Avenue, 33rd Floor
New York, NY 10167-3397

RE: Sukkah; Succot; Festive articles; HQs 964896, 963976, 963701, 962128; Midwest of Cannon Falls, Inc. v. United States; United States v. Carborundum Company.

Dear Ms. Weinberg:

This is in response to your letter of May 31, 2001, to the Director, Customs National Commodity Specialist Division, New York, on behalf of your client, “The Sukkah Center,” requesting a ruling on the classification of a ceremonial “sukkah,” pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for reply, along with your submissions, including photographs of the merchandise, sample interior panel attachment, and portable sukkah carrying case.

FACTS:

The subject article is identified as a “sukkah.” A “sukkah” is a temporary ceremonial structure used expressly for, and during, the Jewish holiday of “Succot.” During the festival of “Succot,” Jewish tradition commemorates a period after the Israelites exodus from slavery in Egypt, when they survived in the desert in temporary “booths,” known as “succot” (hence the name) (Merriam-Webster’s Dictionary, 10th Ed., 1998, p. 1178). The festival of Succot, also called the “Feast of Tabernacles,” is considered a festival of double thanksgiving insofar as it also begins 5 days after the solemn holy day of Yom Kippur (“Day of Atonement”) (See HQ 963976; and “From the Foundations, Carta, (April 1995)).

The sukkah is a festive symbol of Succot, and its construction and use, a festive expression specific to that holiday. Those observing Succot are required
to sit, and partake in festive meals, in a sukkah structure. The sukkah is a main festive focal point for the holiday’s celebrations. Succot holiday ceremonies held in the sukkah include special holiday prayers, and the aforementioned festive meals. Biblical quotations referencing the holiday are often used to adorn the sukkah’s interior walls. By its very nature, the sukkah, is intended to be, and must be, a temporary structure. Thus, for example, it may not be secured to the ground in any way. Requirements found in Jewish religious legal and explanatory texts, prescribe the specifications governing a sukkah’s construction (supra). Absent strict adherence to these requirements, counsel has stated that, the merchandise would not qualify as a sukkah and would not be useable, or used by “The Sukkah Center’s” clientele.

You represent that the subject merchandise, when fully assembled, adheres to the strict religious and ceremonial specifications of a sukkah as prescribed in Jewish law.

The subject merchandise involves two types of “sukkahs” (“succot”). The first type is a portable “sukkah,” (“portable sukkah”), measuring approximately 40 inches x 40 inches x 80 inches. It is designed to enable those traveling on business or away from home during the holiday to carry out their religious obligations with regard to the holiday. The portable sukkah has a snap together frame, fabric walls, an open top, and with or without a loosely gathered top covering made from bamboo or fresh cedar. The parts are placed in a nylon, zippered-carrying bag. An adjustable nylon strap is sewn at each end of the bag, along with two additional, thinner nylon strips, looped and sewn on as handles (one on each side of the bag). The bag is measured and cut just large enough to contain the combined sukkah parts. It is also designed to conform to airline baggage check-in standards, and to fit in a standard car trunk. The carrying bag is indelibly labeled “THE SUKKAH CENTER,” with a picture of a sukkah and the company’s telephone number.

The second article is a “sukkah” with a steel pole frame, and canvas sides. This article is imported in four different sizes: 4 x 6 feet; 6 x 8 feet; 8 x 12 feet; and 10 x 16 feet (“larger succot”). These larger succot feature windows (non-securable), a zippered door, an open top, a printed silkscreen prayer panel attachable to one of the “sukkah’s” inside walls and with or without a loosely gathered top covering made from either bamboo or fresh cedar.

These larger sukkot, contain a decorative cloth panel affixable to an inside wall of the sukkah to enhance its festive nature, and holiday celebrations. Several motifs are available, all include Hebrew biblical sayings or prayers, directly and specifically related to the Succot holiday. The prayers and motifs are permanently printed on the panel. The representative sample panel submitted, contains the biblical quotation in Hebrew which commands the celebration of the holiday and one’s obligation to sit in a sukkah on each of the holiday’s seven days (“BaSuccot tayshvu shivat yamim kol ha’etzrach be’Yisrael yishvu basukkot”).

You state that the subject merchandise is only used during the Jewish holiday of Succot, and not for use for any other occasion. You also state that the merchandise is marketed as a ceremonial sukkah structure for use primarily by individuals and families. The merchandise is pictured, and available for purchase, on the company’s website, www.sukkah.com), which provides merchandise pertaining to the celebration and enhancement of the enjoyment of the Succot holiday.

ISSUE:

Whether a “sukkah” is properly classifiable in heading 6306, HTSUS, which provides for, among other things, “tents,” or heading 9505, HTSUS, which provides for, among other things, “festive articles?”

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 GRIs may then be applied.

The HTSUS provision under consideration is as follows:

Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:

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

Other:

9505.90.60 Other

There are two competing provisions with respect to the classification of this merchandise: heading 6306, HTSUS, which provides for tents, and heading 9505, HTSUS, which provides for festive articles.

Each of these provisions also has an exclusionary legal note. Note 1(t) to Section XI, HTSUS, (which covers heading 6306, HTSUS), states that this section does not cover, “[a]rticles of chapter 95 (for example, toys, games, sports requisites and nets).” Similarly, Note 1(u) to chapter 95, HTSUS, states that, this chapter does not cover “[r]acket strings, tents or other camping goods, or gloves (classified according to their constituent material).” Thus, if a sukkah is classifiable in heading 6306, HTSUS, as a “tent,” it would not be classifiable in heading 9505, HTSUS, as a “festive article.”

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”). Although not legally binding, the ENs facilitate classification under the HTSUS, by offering guidance in understanding the scope of each headings of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs for heading 6306, HTSUS, provide the following:

Tents are shelters made of lightweight to fairly heavy fabrics of man-made fibres, cotton or blended textile materials, whether or not coated, covered or laminated, or of canvas. They usually have a single or double roof and sides or walls (single or double), which permit the formation of an enclosure. The heading covers tents of various sizes and shapes, e.g., marquees and tents for military, camping (including backpack tents), circus, beach use. They are classified in this heading, whether or not they are presented complete with their tent poles, tent pegs, guy ropes or other accessories.”

Caravan “awnings” (sometimes known as caravan annexes) which are tent-like structures are also regarded as tents. They are generally made of man-made fibre fabrics or of fairly thick canvas. They consist of three walls and a roof and are designed to augment the living space provided by a caravan.

Customs has held that all tents in heading 6306, HTSUS, must be designed for outdoor use, and provide some sort of shelter, albeit minimal (See HQ 962147, dated April 6, 1999). In a recent decision, Ero Industries, Inc., v. United States, 118 F. Supp. 2d 1356, (CIT 2000), the Court addressed the scope of the term “tents” with respect to exclusionary note 1(u) to chapter 95, HTSUS. In its decision, the Court determined that the play tents before it, did not constitute “tents,” insofar as their utility value was incidental to their amusement value, and their principal use was not as shelters or camping tents, but as toys. Thus, the play tents before the Court were not excluded from consideration as toys (as provided for in heading 9503), by the terms of Note 1(u), chapter 95.

In the present case, the utility value of the subject succot is fundamentally incidental to their value as festive articles. The succot are used solely for festive celebrations and as a symbol of the holiday of Succot.

A sukkah is required to have a top cover made of loosely gathered materials, in this case, bamboo sticks or cedar boughs, creating a highly porous ceiling to the structure. Consequently, the succot are fundamentally not shelters, and therefore are outside the scope of tents of heading 6306, HTSUS. Thus, we conclude that the succot are not excluded by Note 1(u) of chapter 95, from consideration as festive articles of 9505. This conclusion is further supported by the fact that the succot are only brought out for ceremonial use in time for the holiday, and put away, once the holiday is concluded.

The question therefore arises, whether these succot are provided for in Chapter 95, at heading 9505, HTSUS. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, 20 CIT 123 (1996), aff’d in part, rev’d in part, 122 F.3d 1423, (Fed. Cir. 1997), (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind of merchandise termed "festive articles." The Court 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:

Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

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, Number 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 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, 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.

At issue here is whether the subject “succot” correspond to articles used in celebration of a particular holiday. In other words, are the structures built to particular specifications, and for a particular use, mandated by Jewish religious practice, labeled and decorated in a particular fashion, such that they have become part of the class of festive articles.

In considering the Midwest standards, the “succot” are not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The succot do appear to be a functional item used in the celebration of a festive occasion (Customs has recognized Succot as a festive holiday for tariff purposes. See HQ 963976, dated May 11, 2001).

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 succot are completely dedicated to use in connection with religious observance and festivities. The construction, shape, decoration, and lack of means to secure the structures to the ground per religious based specifications, would limit the articles usefulness to ritual observance and render them inappropriate for any other type of use, such as camping or play. This is further evidenced by a requirement that any top covering must be loosely set in a manner that permits those inside to observe the sky. The small size of the portable sukkah and its packaging in a carrying bag prominently marked “The Sukkah Center”, and the inclusion of an silkscreened/printed textile panel with a Hebrew citation related to the holiday, mark and distinguish the articles, tying them to their specific usage for the fulfillment of religious obligations during the festival of Succot.

The ultimate purchaser would have the expectation of using the articles in connection with the celebration of festive ceremonies and activities for the Succot holiday and at no other time. The ultimate purchaser also has a clear expectation that these articles would meet very strict specifications, or simply not constitute a “sukkah.” These articles would appear to fall into the class of festive articles regardless of their decorative nature, in the same way that an unembellished, or less ornate, nativity scene would also fall into that class.

Evidence of the channels of trade and environment of sale have been presented. Most of the company’s sales are handled through its internet website (www.sukkah.com). The website specializes in a host of articles related to the enjoyment and celebration of the Succot holiday festivities. The majority of the succot are sold to individuals or families, and are used in a communal or family setting, not in houses of worship.

Based on this analysis, Customs is of the opinion that the expectation of the ultimate purchaser, environment of sale, use in the same manner as merchandise which defines the class and recognition in the trade of this use, all indicate that the “succot” are principally used as "festive articles." Therefore, they are classifiable under heading 9505, specifically, subheading 9505.90.60, HTSUS, as “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther: [o]ther.”

HOLDING:

At GRI 1, the “sukkahs” or “succot,” with bamboo or cedar top covering, or at GRI 2(a), if without the loose top covering, are classifiable under subheading 9505.90.60, HTSUS, as “Festive, carnival or other entertainment articles, . . . parts and accessories thereof: [o]ther: [o]ther.”

Sincerely,

John Durant, Director

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