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HQ 964411




May 2, 2002

CLA2 RR:CR:GC 964411 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8205.51.3030

Area Director of Customs
Attn.: Joe DiSalvo
Liquidation and Protest Branch
U.S. Customs Service
Building 77 JFK Intl Airport
Jamaica, New York 11430

RE: Protest 1001-99105462; Metal cookie cutters; Festive articles

Dear Area Director:

This is our decision on Protest 1001-99105462, filed by counsel on behalf of Aviv Judiaca, against your classification of metal cookie cutters under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1998, were liquidated on August 6, and 20, 1999, and the protest timely filed on November 1, 1999. FACTS:

The merchandise at issue consists of four designs of blister packed "Hanukah Fun" Holiday Cookie Cutters, made of metal. The designs include the Hebrew letter "Chai", the "Chanukah Menorah", the Dreidel, and the "Jewish Star" or Star of David. The protestant is claiming that the articles are festive articles of heading 9505, HTSUS, the provision for “Festive, carnival or other entertainment articles. . . parts and accessories thereof.” The protestant states that the articles are marketed, sold and displayed only during the Hanukah holiday season for which the articles were designed.

You classified the cookie cutters in subheading 8205.51.3030, HTSUS, the provision for "Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Household tools, and parts thereof: Of iron or steel: Other (including parts)."

ISSUE:

Whether the "Hanukah Fun" Holiday Cookie Cutters are classified in heading 9505, HTSUS, as a festive article or whether they are classified as other household handtools of iron or steel in heading 8205, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, 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 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 GRIs.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10, HTSUS. Articles for other than Christmas festivities are provided for in subheading 9505.90, HTSUS. The protest form indicates the claimed classification is subheading 9505.10, HTSUS, as articles for Christmas festivities. It is obvious that if there is any validity to the protestant's claim, the classification would be in subheading 9505.90, HTSUS, as articles for other than Christmas festivities.

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 "Hanukah Fun" Holiday Cookie Cutters under protest appear to be utilitarian or functional articles because they appear to be designed for use in the kitchen to cut by hand particular shaped unbaked cookie dough into a form that will be baked. The cookie cutters fail to meet the standard applied to festive articles listed in #2, supra, namely, they do not "function[ ] primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday" because they do not decorate the home nor are they a functional item used in the celebration of the holiday, such as a Hanukah menorah which holds candles in celebration of the holiday. The physical characteristics of the instant goods, by contrast, indicate that the goods belong to a class of goods used principally for the preparation of food. This analysis conforms to Customs decisions in the classification of Halloween cookie cutters (bat shaped and jack-o'lantern) in New York Ruling Letter (NY) D80147, dated August 10, 1998, and with respect to Christmas cookie cutters, in Port Decision D80010, dated August 5, 1998, (angel, bell, Santa, snowman, star, and Christmas tree). These decisions classified these plastic cookie cutters in subheading 3924.10.5000, HTSUS, as other household articles of plastics as tableware or kitchenware.

The principle behind the classification is also shown in Headquarters Ruling Letter (HQ) 961099, dated October 6, 1998, in which a kit sold to dye and decorate Easter Eggs was classified in heading 3212, HTSUS, in the provision for dyes and coloring matter put up in forms or packing for retail sale with the dye portion providing the essential character to the set. Also in accord is NY G84398, dated December 11, 2000. In NY G84398, Customs indicated that the "Egg Decorating Kit is not a decorative article in and of itself. The components of the kit are functional. They are viewed as tools or implements for coloring or enhancing the appearance of eggs." For the same reasons, the cookie cutters are not more than tools used to create a cookie that may be served at a holiday. For classification purposes, the tools that make the article are not equated with the article. Moreover, the articles the cookie cutters make in this instance are a foodstuff, not a festive article. Therefore, the articles do not decorate and they are not functional items used in celebration of, and for entertainment on a holiday.

As indicated, supra, the Midwest court looked at Carborundum evidence to help identify whether a particular article conformed the uses expected of festive articles.

As to physical characteristics, these articles are in every respect tools used in the preparation of food. Although the end result of two of the cookie cutters is a cookie in the shape of a recognized symbol of the Hanukah holiday, Hanukah cookies are not festive articles. Customs recognizes the Hanukah-related designs in the case of the minorah and the dreidel, but does not recognize the Star of David or the letter Chai as being unique to Hanukah in that the latter two symbols have generalized applications throughout the year in Jewish culture.

As to expectation of the ultimate purchaser, the cookie cutters are expected to be used to prepare food, not to decorate homes.

With respect to the channels of trade, the articles would be sold in supermarkets or specialty stores, probably around Hanukah, in the same way that Halloween cookie cutters would be sold with Halloween goods, and the Easter Egg decorating kits would be sold with Easter baskets and other Easter goods in advance of the Easter season. Such display would not transform them into festive articles any more than it would the other cookie cutters mentioned for other holidays.

The environment of the sale, including manner of advertisement, accompanying accessories and display, is not stated. It appears that the environment of the sale is similar to the channels of trade discussed supra.

With respect to the use of the article in the same manner as merchandise which defines the class, this article is used in a manner identical to ordinary cookie cutters that have such designs as gingerbread man, a musical note, a crescent moon, or the like. The choice of design does not transform a food preparation tool into a festive article.

With respect of the recognition of the trade of its use, the protestant claims that the cookie cutters will not be used any other time of the year. As indicated, supra, Customs does not agree with the designation of two of the cookie cutters as "unique to Hanukah and . . . instrumental in commemoration of the holiday." There has been no additional evidence provided, nor is Customs aware of any, that would shed further light on the trade's understanding of these articles.

The protestant claims that the correct classification is in heading 9505, HTSUS. This heading provides, in part, for articles that are for other than Christmas festivities. For the reasons stated, this article fails to qualify as an article of heading 9505, HTSUS.

HOLDING:

The "Hanukah Fun" Holiday Cookie Cutters containers are classified in subheading 8205.51.3030, HTSUS, the provision for "Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Household tools, and parts thereof: Of iron or steel: Other (including parts)."

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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