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HQ 965779




September 13, 2002

CLA-2 RR: CR: GC 965779 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 1604.14

Mr. Gerald B. Horn
Sandler, Travis & Rosenberg, P.A.
551 Fifth Ave.
New York, NY 10176

RE: Reconsideration of NY I83692; “Kosher for Passover” tuna

Dear Mr. Horn:

This is in response to your letter dated July 9, 2002, on behalf of your client, Rema Foods, requesting reconsideration of NY I83692, issued to you on June 28, 2002. We have reviewed the ruling and find it to be correct.

FACTS:

The subject merchandise is “Kosher for Passover” canned solid white tuna packed in water. In NY I83692, Customs classified this merchandise in subheading 1604.14, HTSUS, as prepared or preserved tuna fish in airtight containers, not in oil. You contend the tuna is a festive article, classifiable in subheading 9505.90, HTSUS.

You state the subject tuna is imported and sold exclusively in connection with the Jewish holiday of Passover. It is specially prepared and produced under the Rabbinical supervision required for goods to be kosher for Passover. The label for the can in which the tuna is packaged contains the Passover designation, “P,” next to the registered trademark of the Orthodox Union (“OU,” one of the world’s largest Jewish organizations), denoting a good is kosher. A “P” following the OU mark indicates the kosher good is kosher for Passover.

ISSUE:

Whether “Kosher for Passover” canned tuna in water is classifiable as a festive article of heading 9505, HTSUS, or as prepared or preserved tuna fish in airtight containers, not in oil, in heading 1604, 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

1604 Prepared or preserved fish, caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced:

1604.14 Tunas, skipjack and bonita (Sarda spp): Tunas and skipjack:
In airtight containers:

1604.14.20 Not in oil

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

9505.90 Other

9505.90.20 Other

In Midwest of Cannon Falls, Inc. v. United States, Court No. 920300206, 1996 Ct. Int’l Trade LEXIS 15 (Ct. Int’l. Trade, January 18, 1996), 122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles," and provided new guidelines for classification of articles in the heading. In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article 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 Informed Compliance Publication, (ICP) “Classification of Festive Articles,” Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the above listed criteria, the Court gave consideration to 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, 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.

An article’s satisfaction of the three criteria set forth in Midwest is indicative, but not dispositive, of classification as a festive article. We must determine if the canned tuna designated as kosher for Passover, in its condition as imported, is recognized in that state as a “festive article” used in the celebration of Passover.

In determining that an acrylic “matzah box” was not classifiable as a festive article, we stated in HQ 964896, dated April 16, 2001, that 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, whereas the three pocket Seder Matzah Holder, is specifically for the matzah used during the Passover Seder and embroidered with the Hebrew words of the items on the Seder plate. It is thus reserved for use at Passover. See NY F81591, dated February 1, 2000. See also HQ 963701, dated August 17, 2000 (classifying a “challah cover” in heading 6304, HTSUS, because it was not reserved for any particular holiday, though challah bread is covered on the Sabbath and other festive holidays).

In contrast to the “matzah box,” the “citron box” classified in HQ 963976, dated May 11, 2001, held a singular citron, a citrus fruit used in the celebration of the Jewish festival of “Succot,” and was used strictly in accordance with festive ritual practice, and for celebratory prayers during the Succot holiday. Its design (distinct shape for a citron, size, padding, etc.) served the ritual requirement of protecting the citron. Further, it was decorated with accepted symbols of Succot and included an embroidered prayer for Succot in Hebrew, which limits the article’s usefulness to ritual observance. The balance of these factors overrode its utilitarian value as a box, whereas the utility of the “matzah box” overrode its association with the holiday.

Similarly, the “sukkah,” a temporary ceremonial structure also used in Succot, classified in HQ 965161, dated August 29, 2001, the “Seder plate,” classified as in NY C88308, dated June 19, 1998, and the “menorah” for “Chanuka”, classified in I84339, dated July 22, 2002, are all festive articles because, like the protection of the citron, these articles are required in the celebration of the respective holidays by Jewish law (i.e., Talmudic law). That is, the citron box, the seder plate, the menorah and the sukkah are accepted symbols and serve a celebratory and religious purpose, though are predominantly for the home.

Though not all accepted symbols of a particular holiday must be required by Jewish law, it is an important factor in determining what constitutes “use in celebration of” a particular holiday. Thus, while dietary restrictions are also part of Jewish law, and food for Passover must be kosher for Passover, tuna is not specifically required, as a seder plate or sukkah, by Jewish law in order to celebrate Passover. Moreover, though you claim the instant kosher for Passover tuna will only be imported and sold on and around Passover, many kosher for Passover tunas are sold year-round in both general-purpose supermarkets and kosher grocery stores. Unlike the celebratory role the above-mentioned articles play in each of the holidays, tuna serves the primary utilitarian role of nourishment.

Thus, “Kosher for Passover” tuna does not meet the three Midwest criteria. It is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. However, though arguably functional as food, tuna is not used in celebration of and for entertainment on a holiday because it is not an accepted symbol of a particular holiday. Moreover, no food product has been classified as an accepted symbol of a particular holiday for tariff purposes. Stamping a turkey “For Thanksgiving” would not make it a festive article of heading 9505, HTSUS, though turkey is closer to an accepted symbol of the Thanksgiving holiday than tuna is to Passover.

With respect to the general criteria set forth in Carborundum, we note that the physical characteristics of the can of tuna and the label are that of ordinary canned tuna, less the well-known designation “P.” In HQ 962128, dated October 18, 1999, we classified a crystal blessing cup decorated with an engraved Star of David and the last words of the Hebrew prayer over wine, used in the celebration of various Jewish festivals, such a Passover. In applying the Carborundum factors, we stated, with respect to the physical characteristics, that the deep cutting of the Star of David and the etched Hebrew word of prayer would “limit the article’s usefulness to ritual observance and render it inappropriate for any other type of use, such as ordinary drinking of wine in connection with a meal.”

On the contrary, though the subject brand of tuna’s channel of trade and environment of sale may be limited, as you stated, it is food, edible at all times of the year. Its usefulness during ritual observance of Passover is not limited, and its preparation and service mark designation as “Kosher for Passover” does not render it inappropriate to be eaten at times other than Passover.

You assert, by comparing the cost of “Kosher for Passover” tuna with regular tuna, that it is not economically practical to use the import outside of the Passover holiday. However, we note the variable prices of other tunas in the marketplace irrespective of kosher designation and kosher for Passover designation.

You contend that “Kosher for Passover” food products should be considered accepted symbols of a particular holiday due to the “religious significance and ritual observance of eating certain foods in connection with the Passover holiday.” However, many foods not designated by label as being kosher for Passover are acceptable foods for consumption during Passover. According to the Passover information guide you submitted to us, one must simply inquire with her rabbi whether a particular vegetable, for example, is kosher for Passover. Your contention suggests that all food acceptable to be eaten during the Passover holiday should be classified as a festive article.

What makes a food product kosher or kosher for Passover is its manner of preparation. Though the tuna is prepared under strict guidelines and under the supervision of a rabbi, it is not an accepted symbol of the Passover holiday. Accordingly, NY I83692 is affirmed.

HOLDING:

“Kosher for Passover” canned solid white tuna, packed in water, will be 1604.14, HTSUS, which provides for “Prepared or preserved fish: fish, whole or in pieces, but not minced: tunas, skipjack and bonito: tunas and skipjack, in airtight containers, not in oil.” If entered within the tariff rate quota period, this tuna product will be classified in subheading 1604.14.2020, HTSUS, the provision for such tuna, packed in containers weighing with their contents not over 7 kilograms each, and not the product of any insular possession of the United States, for an aggregate quantity entered in any calendar year not to exceed 20 percent of the United States pack of canned tuna during the immediately preceding year, as reported by the National Marine Fisheries Service, Albacore. If entered after the tariff rate quota has filled, this tuna product will be classified in subheading 1604.14.3020, HTSUS.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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