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HQ 965803




October 4, 2002

CLA-2 RR:CR:GC 965803 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9608.10.0000

Ms. Marjorie Shapiro
Samuel Shapiro & Company
The Corn Exchange Building
123 Chestnut Street, Suite 400
Philadelphia, PA 19106

RE: Reconsideration of NY I83652; Witch-shaped Pen on Cord; Midwest of Cannon Falls, Inc. v. United States

Dear Ms. Shapiro:

This is in response to your request on behalf of Unique Industries, Inc., for reconsideration of New York Ruling Letter (NY) I83652, issued June 21, 2002, under the Harmonized Tariff Schedule of the United States (HTSUS), concerning the classification of a witch-shaped pen on a cord.

FACTS:

In NY I83652, the Director, National Commodity Specialists Division, New York, determined that the subject witch-shaped pen on a cord was classified in subheading 9608.10.0000, HTSUS, which provides for ball point pens.

Your letter stated that the pen in question is sold with several variations for Halloween. The novelty pen variations include a "ghost" design pen, a "vampire" design and a "Frankenstein Monster" design. Your letter indicated that the goods are being imported for sale around Halloween and you have provided a display box for the counter sale of the articles. The box is marked "Halloween" and "Party Favors", "Babioles de Fête." You state that the article is "festive in nature" and thus imply that it should be classified in subheading 9505.90.60, HTSUS, as other festive articles.

While only the witch-shaped pen is under consideration in this reconsideration, the series of designs identified in your letter follow the same concept. The body is entirely of molded plastics with the head having the largest width of the entire article. The body tapers down to create a barrel that is comfortable for holding while writing. The head is about one inch in diameter and the portion nearest the point is about ½ inch in diameter. A removable cap about ½ inch in length shields the point when the pen is not in use. The presence of this cap appears to account for the "choking hazard" warning on the box stating that the article is not for children under 3 years of age. A metal eye is affixed to the top of the head of all the figures through which a lightweight braided cord is threaded. The cord is about 30 inches in length and is joined by a two-part plastic snap. The cord can easily be removed without affecting the usefulness of the pen.

ISSUE:

Whether the witch-shaped pen on a cord is classified in heading 9608, HTSUS, as ball point pen, or as other festive articles in heading 9505, HTSUS.

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. The Explanatory Notes (ENs) 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 GRIs.

The HTSUS provisions under consideration are as follows:

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

9505.90 Other [than Articles for Christmas festivities] and parts and accessories thereof

Ball point pens; . . . ; parts (including caps and clips) of the foregoing articles, other than those of heading 9609

9608.10 Ball point pens

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for other than Christmas festivities [such as Halloween] are provided for in subheading 9505.90, HTSUS.

Heading 9608, HTSUS, provides, among other things, for ball point pens. Note 1(l) to Chapter 96 excludes "articles of chapter 95." Therefore, if the article fails to qualify for classification as a festive article, it would be classified in Chapter 96 as a ball point pen.

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 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.

Customs views the witch-shaped pen on a cord as a principally functional three-dimensional article. It differs from most of the products readily found to be festive articles of heading 9505, HTSUS, in that it does not present an accepted symbol of a particular holiday. Witches, alone, do not appear to represent Halloween, inasmuch as witch figures are used in a variety of contexts. For example, the well-known witches from "Macbeth" are not Halloween representations, nor are the witches from the "Wizard of OZ." Moreover, the witch and the other characters used to create a body for the ball point pen are merely a motif for a novelty pen. They are not integral to the celebrating of the holiday (such as a Jack O'Lantern in the form of a Trick or Treat "Loot" container). See HQ 961889, dated June 2, 1999. Moreover, the pen does not meet the standards for festive articles in that it does not decorate the home or serve to celebrate the holiday. There is nothing to associate writing with a pen and Halloween.

With respect to the Carborundum factors, set forth, supra, the general physical characteristics of the article demonstrate that it is nothing but a pen with a character motif. It functions fully as a pen. The cord to be worn around the neck is not a radical addition to a pen as it makes the pen readily accessible to the user and less likely to be misplaced. The character designs or motifs for the "scary" characters makes the pens identifiable as a novelty pen, but nevertheless, a pen. Customs has long classified functional novelty pens in clever eye-catching shapes and forms as pens. See, e.g., New York Ruling Letter (NY) I82976, dated June 18, 2002, with classification in heading 9608, HTSUS, in which one pen is in the form of a fish and the other pen is designed to look like artificial shells and coral. See, also, NY 851320, dated April 1, 1990, in which pumpkin heads and ghost figures were affixed to novelty pens of heading 9608.

The expectation of the ultimate purchaser would be to buy this article for use as a pen, probably around the time of Halloween, but might use it considerably beyond Halloween until the ink is depleted.

The channels of trade in which this merchandise might be sold includes drug stores, groceries, novelty stores and places in which the display box could be placed on the counter to attract impulse buyers. It appears doubtful that there would be an outlet for "Halloween pens", nor has evidence of such a thing been presented.

The environment of the sale (accompanying accessories, manner of advertisement and display) is in the retail sales described supra.

The economic practicality of using the import in a manner consistent with the class does not have easy application within the facts of this case.

The article does not meet the standards for festive articles of heading 9505, HTSUS. Customs finds the witch-shaped pen on a cord to be an actual functioning ball point pen, intended to be used as such. We find the witch-shaped pen on a cord to be properly classified in subheading 9608.10.0000, HTSUS, in the provision for ball point pens.

HOLDING:

The witch-shaped pen on a cord is classified in subheading 9608.10.0000, HTSUS, in the provision for ball point pens.

NY I83652, dated June 21, 2002, is AFFIRMED.

Sincerely,

Myles B. Harmon, Acting Director

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