Easter Egg Container # 3

HQ 961700 February 19, 1999 CLA2 RR:CR:GC 961700 MMC CATEGORY: Classification TARIFF NO.: 9505.90.60 Ms. Lynn O’Beirn Four Star International Trading Company 3330 East 79th Street Cleveland, Ohio 44127 RE: Easter Egg Container # 3 Dear Ms. O’Beirn: This is in response to your February 20, 1998, letter, to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for an article identified as “Easter Egg Container # 3" 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. We regret the delay in responding. FACTS: The subject article consists of 2 dozen pastel colored egg-shaped containers in a “novelty net bag.” The eggs are 2 inches long and split open at the center so they may be filled with small candies or trinkets and then closed. The “novelty net bag” is essentially a plastic net drawstring bag with stuffed 3 dimensional textile replications of a bunny rabbit’s head feet and legs attached in the appropriate places on the bag. The “novelty net bag” is constructed in a manner which resembles a rabbit. “Easter Egg Container #3" will be used on the Easter holiday for the tradition of Easter egg hunting. An Easter egg hunt is conducted by filling the plastic “eggs” with goodies hiding them and then allowing children to collect them. The bag will be used by children to hold the various eggs they collect. ISSUE: What is the classification of the “Easter Egg Container # 3 ?"  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 and egg shaped container has no precious or semi-precious stones, metals or metal clad with precious metal. Furthermore, it is a decorative item used in an Easter egg hunt; a well documented form of entertainment for the holiday, Easter. As such, it is classifiable as a festive article, in heading 9505, HTSUS. HOLDING: The “Easter Egg Container # 3" 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