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HQ 963184

May 18, 2001

CLA-2 RR:CR:GC 963184 JGB


TARIFF NO.: 4202.92.4500

Port Director
U.S. Customs Service
555 Battery Street
San Francisco CA 94126

RE: Protest 2809-99-100673; "Scary Carries Trick or Treat Candy Bags"

Dear Director:

This is a decision on Protest 2809-99-100673 against your decision in the classification of "Scary Carries Trick or Treat Candy Bags" under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1998 , were liquidated during July and August 1999, and the protest timely filed on August 26, 1999.


The merchandise consists of Item # SC-0024, described as "Scary Carries Trick or Treat Candy Bags." The item is sold as a collection of three unnumbered styles: Ghost, Bat, and Dinosaur. Each is manufactured wholly of polyvinyl chloride (PVC) sheeting and has an inflatable portion of a "bat", "ghost", or "dinosaur" heat sealed to the sides of the bag. The bags are claimed to be used to carry candy and other personal property during Halloween "Trick or Treating", although there appears to be no practical limitation of their use as an eye-catching novelty carrying bag. They would not appear to have any useful role in decorating a home for a particular holiday.

You classified the "Scary Carries Trick or Treat Candy Bags" in subheading 4202.92.4500, HTSUS, in the provision for travel, sports, and similar bags, other.

The protestant claims that the merchandise is classified in heading 9505, specifically in subheading 9505.90.60, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other.”


Whether the "Scary Carries Trick or Treat Candy Bags" are classified in heading 9505, HTSUS, as festive articles, or as travel sports and similar bags.


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.

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.

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 the Informed Compliance Publication on the Classification of Festive Articles published in the 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 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.

In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Also, the merchandise presents the principal question of whether the articles are functional, and if so, do they present a recognized symbol of the three dimensional figure. All of the articles appear to be functional, in that they serve to carry Halloween candy or other personal belongings from place to place. As to being three-dimensional, it is the very fact that the articles are not three dimensional that makes them eye-catching and appealing. The "dinosaur", "bat", and "ghost" give the appearance of having moved or floated through a shopping bag leaving only their extremities showing. Although their extremities are showing, these are not three-dimensional articles in the sense of three-dimensional articles found to be classified in heading 9505, HTSUS, by the Midwest court. We do not find these articles to have lost their identities as bags, albeit bags for trick or treating. The inflatable appendages make the bag decorative, but they do not make the article a three-dimensional representation of an acceptable symbol of Halloween.

We note that if inflatable figures were created without the vinyl shopping bags, there still would be a question whether the figures were festive articles for Halloween. Neither a "ghost" nor "bat" is automatically considered a symbol of Halloween, although Carborundum evidence might identify an article as a Halloween bat or ghost. See Section IV,A. of the ICP. But there is no apparent connection between dinosaurs and Halloween, with or without Carborundum evidence. It is also noted that Trick or Treat Bags are not per se excluded from classification as festive articles of heading 9505, HTSUS. In Headquarters Ruling (HQ) 961889, dated June 2, 1999, a textile spherical representation of a jack-o'lantern with a stick-like handle was classified in heading 9505, HTSUS. The article was marketed and sold as a Halloween celebration article and it had the three-dimensional form of an accepted symbol of the recognized holiday. By contrast, a bag said to be used for trick or treating with a troll's head that flips back to show a carrying cavity was classified in subheading 4202.92.3031, HTSUS, because it was primarily a carrying bag. It was not considered for classification in heading 9505, HTSUS, because it did not have a representation of an accepted symbol of a recognized holiday. But where the figure is actually three-dimensional as in HQ 962321, dated February 10, 1999, and the connection with the accepted holiday is clear and unmistakable, subheading 9505.90.60, HTSUS, will apply.

It is noted that the importer requested a ruling from Customs on April 6, 1999, on "novelty shopping bags from China" involving apparently the same merchandise. The New York Ruling (NY) E80334, was issued to Hill Design Group on April 13, 1999, classifying the articles in subheading 4202.92.4500, HTSUS. Accordingly, the statement on the Customs Form 19 to the effect that no previous adverse administrative decision had been received is incorrect.


"Scary Carries Trick or Treat Candy Bags" are classified in subheading 4202.92.4500, HTSUS, which provides for travel, sports, and similar bags, other.

The protest should be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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