United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 967116 - HQ 967223 > HQ 967210

Previous Ruling Next Ruling
HQ 967210




June 29, 2004

CLA-2 RR:CR:GC 967210 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.90.4500, 9505.90.6000

Ms. Cathy Bonadonna
Bed, Bath & Beyond
650 Liberty Ave.
Union, NJ 07083

RE: Pumpkin Making Kit; Modification of NY K86034

Dear Ms. Bonadona:

On May 14, 2004, the Bureau of Customs and Border Protection (CBP) issued to you New York Ruling Letter (NY) K86034, which classified the "Pumpkin Making Set" (SKU 13323313) as a festive article in subheading 9505.90.60, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed that ruling and found it to be incorrect, in part

In accordance with Part 177.12(b) of the Bureau of Customs and Border Protection (CBP) Regulations (19 CFR §177.12(b)), CBP may modify or revoke an interpretive ruling that has been in effect for less than sixty (60) calendar days by simply giving written notice of the modification or revocation to the party to whom the ruling was originally issued. As NY K86034 has been in effect for less than 60 calendar days, this ruling letter provides you notice of modification of NY K86034 and sets forth the proper classification of the "Pumpkin Making Set."

FACTS:

The merchandise at issue is the "Pumpkin Making Kit" to be imported by Bed, Bath & Beyond. It consists of a hinged wooden box and three sets of wooden shapes with 2 1/2-inch pegs attached which make up a black cat, a bat and a jack o' lantern. The wooden shapes are the black cat 's head, tail and four paws, the bat's head and wings, and the triangular-shaped jack o' lantern eyes and nose and a mouth. The black cat and bat parts also include purple textile bow tie decorations. The jack o' lantern parts include a conical black textile witch hat decoration. The shapes are to be used to decorate a pumpkin (not included). Each shape has a 2-1/2 " peg with a pointed end for inserting into the pumpkin.

The wooden pieces of the cat, bat and jack o' lantern, and their accompanying textile decorations, are sold in the hinged wooden box with a metal clasp. The box is 11 inches long, 6 inches wide and 4 1/2 high. The top of the box is decorated with the phrases "Pumpkin Making Kit" and "just add pumpkin," and with three depictions of pumpkins decorated as the cat, bat and jack o' lantern.

ISSUES:

Whether the "Pumpkin Making Kit" is classifiable according to General Rule of Interpretation 3(b) as goods put in sets for retail sale and whether it is classifiable as a festive article.

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:

4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:

Other:

4420.90 Jewelry boxes, silverware chests, cigar and cigarette boxes, microscope cases, tool or utensil cases and similar boxes, cases and chests, all the foregoing of wood:

Other:

4420.90.45 Not lined with textile fabrics

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.90 Other:

9505.90.60 Other

In NY K86034, we classified the Pumpkin Making Kit as a festive article of heading 9505, HTSUS, stating the kit was purely decorative in its use and marketed and sold solely for the Halloween holiday. However, in that ruling, we did not thoroughly analyze the individual components of the kit, as would be necessary to determine if they should be, for example, classified separately or as "goods put up in sets for retail sale" according to GRI 3(b).

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," and provided guidelines for classification of goods in the heading. According to the Midwest guidelines, merchandise is classifiable as a festive article under heading 9505, HTSUS, when the article, as a whole:

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

(b) Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

(c) Is associated with or used on a particular holiday

Further, the ENs to heading 9505, include, in part, the following:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.

(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche - heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.

(4) Throw-balls of paper or cotton-wool, paper streamers (carnival tape), cardboard trumpets, “blow-outs”, confetti, carnival umbrellas, etc.

The heading excludes statuettes, statues and the like of a kind used for decorating places of worship.

Moreover, EN 95.05(A) provides the following exclusion:

The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.

The wooden shapes and textile bow ties and hat are used to decorate pumpkins, which is an activity done in celebration of Halloween. They are symbols that are closely associated with Halloween. They are similar to the goods listed EN 95.05(A)(1) (i.e., akin to cake decorations). The textile articles could also be considered akin to the goods listed on EN 95.05(A)(2), though on a smaller scale. Moreover, while durable, they are intended for use articles to decorate a pumpkin, an activity intended only during and in celebration of Halloween. They are clearly decorative and used in celebration of, and for entertainment on, a holiday. As they satisfy the Midwest criteria and are consistent with the ENs, they are festive articles, classified in heading 9505, HTSUS.

However, in considering the Midwest criteria with respect to the wooden hinged box, we note that the box, while decorated with depictions of Halloween symbols and thus arguably associated with a particular holiday, is used to store the items that are used in celebration of the holiday. That is, it stores the items used in decorating pumpkins but is not itself used in celebration of the holiday. As such, it appears to be a utilitarian or functional article, conforming to the general characteristics of a storage box. Articles which are utilitarian in nature are generally not classifiable as festive articles. See, e.g., HQ 966215, February 23, 2003; HQ 966596, July 25, 2003; HQ 965803; October 4, 2002; HQ 965729, September 9, 2002.

In addition to the above listed criteria, the Midwest 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, the Carborundum criteria, infra, are applied to help identify whether a particular article conforms to the uses expected of festive articles and thus belongs to the class or kind "festive articles."

Carborundum criteria includes the general physical characteristics of the article, the expectation of the ultimate purchasers, the channels, class or kind of trade in which the item moves, the environment of the sale (accompanying accessories and the manner in which the item is advertised and displayed), the use in the same manner as merchandise which defines the class, the economic practicality of so using the import, and recognition within the trade of this use.

Applying the aforementioned factors, we classified a painted wooden box with a raised polyresin Santa Clause figure protruding from it as festive article of heading 9505, HTSUS, in HQ 961992, dated August 7, 1998. We determined that the box was "principally decorative, used at the Christmas holiday season to set around to display and enhance a room. The highly decorative characteristics of the article, including the possibly hand painted interior, indicate that any utilitarian function of the article is minimal. The box stands on its own, whether the user would choose to put Christmas cards, or other colorful objects in it for display, or leave the box empty to suggest a country craft or primitive artistic piece." Similarly, a citron or etrog box classified in HQ 963976, dated May 11, 2001, was held to be a festive article because it is used in strict observance of the celebration of the Jewish festival of Succot.

On the contrary, the decorated boxes classified in HQ 963285, dated April 9, 2002, are used merely as a means of storage. They were not classified in heading 9505, HTSUS. This is consistent with HQ 961874, dated September 14, 1999, classifying a Halloween-related porcelain hinged box and a wooden basket outside of heading 9505, HTSUS; HQ 964896, dated April 16, 2001, classifying an acrylic matzah box outside of heading 9505, HTSUS; HQ 964364, January 9, 2001, classifying a heart-shaped box sold for Valentine's Day outside of heading 9505, HTSUS.

As stated above, the physical characteristics of the wooden box are those of a wooden storage box, even the depictions on the box contribute to its function as storage for the kit. It is labeled as the kit, and depicts the use of the articles inside, demonstrating what pumpkins will look like once decorated with the cat, bat and jack o'lantern shapes. Given that, the box, while decorated, is not principally decorative. It would not be used as holiday décor in the home. The box does nothing but provide a means to store the holiday goods.

In light of the distinctions between the subject box and the boxes classified in HQ 961992 and HQ 963976, and the similarities in function of the boxes classified in the latter-cited rulings, we believe the box is not classifiable in heading 9505, HTSUS. Rather, it is covered by heading 4420, HTSUS, which provides in relevant part for wooden boxes.

Accordingly, the Pumpkin Making Kit cannot be classified pursuant to GRI 1 because the components are classifiable in different headings. GRI 3(b) governs goods put up in sets for retail sale. EN X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two (2) different articles which are prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking.

The box and the shapes and textile pieces are classifiable in two different headings (9505 and 4420, HTSUS). Thus, it satisfies requirement (a). Several of the shapes and textile pieces are used in conjunction with one another to decorate a pumpkin. In order to satisfy requirement (b), the box must have a sufficient nexus to the activity of decorating a pumpkin. See, e.g., HQ 964539 November 21, 2001 (determining a backpack specially designed for the picnic goods it carried was sufficiently related to the activity of picnicking to satisfy the criteria of meeting a particular need or carrying out a specific activity).

In HQ 963593, dated October 15, 2001, CBP determined that a soft-sided cosmetic bag was not classifiable with the cosmetics it contained according to GRI 3(b) because the cosmetics are used together to enhance appearance but the bag served to protect and store the cosmetics. In this case, the wooden box similarly stores the decorations used to decorate the pumpkin. The wooden box, however, is not used to decorate a pumpkin. Therefore, the components of the Pumpkin Making Kit do not satisfy criteria (b) and thus the goods cannot be classified according to GRI 3(b). As such, it is classified separately in heading 4420, HTSUS.

It is for the foregoing reasons we find NY K86034 to be in error.

HOLDING:

The wooden pieces and textile decorations are classified in subheading 9505.90.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), 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 wooden box is classified in subheading 4420.90.4500, HTSUSA, which provides for "Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Other: Jewelry boxes, silverware chests, cigar and cigarette boxes, microscope cases, tool or utensil cases and similar boxes, cases and chests, all the foregoing of wood: Other: Not lined with textile fabrics." The rate of duty will be 4.3 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

NY K86034, dated May 14, 2004, is hereby MODIFIED.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: