“Easter Bunny Basket;” Festive Article; Not Other Made UpTextile Article; Midwest of Cannon Falls, Inc. v. UnitedStates; Revocation of HQ 087786 by Operation of Law

HQ 958916 February 23, 1999 CLA-2 RR:CR:TE 958916 GGD CATEGORY: Classification TARIFF NO.: 9505.90.60 Louis S. Shoichet, Esquire Thompkins & Davidson, P.C. One Astor Plaza 1515 Broadway, 43rd Floor New York, New York 10036-8901 RE: “Easter Bunny Basket;” Festive Article; Not Other Made Up Textile Article; Midwest of Cannon Falls, Inc. v. United States; Revocation of HQ 087786 by Operation of Law Dear Mr. Shoichet: In Headquarters Ruling Letter (HQ) 087786, issued to you December 20, 1990, on behalf of Avon Products, Inc., an article identified as a “Easter Bunny Basket” was classified in subheading 6307.90.9590, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provided for other made up textile articles. 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.  -2- FACTS: At the time HQ 087786 was issued, the sample was described as a oval-shaped, textile container measuring approximately 6 inches in length by 4-1/2 inches in width, with an outer shell of polyester fabric stuffed with polyester filler material. Designed to hold Easter eggs and represent a rabbit, the item featured a rabbit head with ears, and rabbit feet sewn onto the body. The container could be carried by means of double straps with polyester-filled, paw-shaped ends, and hook and loop type fasteners. ISSUE: Whether the “Easter Bunny Basket” is classified in heading 6307, HTSUS, as an other made up textile article; or in heading 9505, HTSUS, as a festive article. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 (EN) 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. 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 -3- 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 “Easter Bunny Basket” is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The item is a functional, three-dimensional representation of a rabbit, which is not an accepted symbol of a recognized holiday. As such, the basket does not meet the first two of the Midwest criteria. However, with respect to the general criteria set forth in Carborundum, and further considered by the Court, we note that the Easter Bunny is often associated with Easter, that an ultimate purchaser would buy the basket with the expectation of using it to collect, distribute, or display Easter eggs and/or candy, and that the basket would be available for only a limited time prior to the Easter holiday at outlets specializing in the sale of holiday-related articles. We conclude that, by application of the Carborundum criteria, the “Easter Bunny Basket” constitutes a festive article. This letter is sent to you as a courtesy, to advise you that this office is applying the principles, rationale, and criteria used by the Court in Midwest, and that rulings issued by Customs under the provisions of 19 CFR 174 or 177, that are inconsistent with the Midwest decision, are revoked or modified by operation of law. In this instance, by operation of law, the Midwest decision revoked HQ 087786. The “Easter Bunny Basket” is therefore classified as a festive article under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUSA, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other,” with a general column one duty rate of free. Also see Headquarters Ruling Letter (HQ) 962321, issued February 10, 1999. Under the Customs Modernization provisions of the NAFTA Implementation Act, it is the responsibility of the importer to classify and appraise merchandise. The U.S. Customs Service, although under no obligation to inform you of the foregoing, is -4- in the spirit of informed compliance notifying you of the consequences of the Midwest case. This letter and attachment should be brought to the attention of Customs when entry is made for your merchandise, either by referencing this ruling letter or by providing a copy. Sincerely, John Durant, Director Commercial Rulings Division