Three Dimensional “Jack-O-Lantern” Textile Bag

HQ 962512 February 10, 1999 CLA2 RR:CR:GC 962512 MMC CATEGORY: Classification TARIFF NO.: 9505.90.60 Mr. Ray Meighan Federated Merchandising Group Customs Department 1440 Broadway New York, New York 10018 RE: Three Dimensional “Jack-O-Lantern” Textile Bag Dear Mr. Meighan: This is in response to your December 21, 1998, letter, to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for an article identified as style # 3201000109 and described as a three dimensional “Jack-O-Lantern” textile bag under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with your request. Your letter was referred to this office for reply. FACTS: The subject article is described as a “Jack-O-Lantern” 100% polyester filled textile trick-or-treat bag. The carved face is simulated by contrasting black appliques sewn to the orange pumpkin body. Where the handle meets the bag has been trimmed with simulated green leaves manufactured of plush velour. Two orange blinking mini-lights have been sewn into the bag as eyes. At the center of the handle is a patch that reads “Push Here.” When pushed, a voice laughs and then says “Happy Halloween!” The article is designed to be used to collect, disperse and display the “goodies” present at Halloween events. ISSUE: What is the classification of the three dimensional “Jack-O-Lantern” textile bag? LAW AND ANALYSIS:  In Midwest of Cannon Falls, Inc. v. United States, 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 on a review of the Midwest articles, 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 if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 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). As such, for those decorative and utilitarian articles involving holidays and symbols not specifically recognized in Midwest or the January 21, 1998, Customs Bulletin, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article 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. The subject bag has no precious or semi-precious stones, metals or metal clad with precious metal. Furthermore, it is a three dimensional representation of a “Jack-O-Lantern” which is an accepted symbol for a recognized holiday, Halloween. As such, it is described by heading 9505, HTSUS and classifiable as a festive article. See Headquarters Ruling Letter (HRL) 961521 dated February 9, 1999, and HRLs 961946, 961543 and 962531 all dated February 10, 1999. HOLDING: The three dimensional “Jack-O-Lantern” textile bag is classifiable under subheading 9505.90.60, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther:[o]ther." Sincerely,  John Durant, Director Commercial Rulings Division