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HQ 957708




July 21, 1995

CLA-2 R:C:F 957708 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6090

Ms. Mona Webster
Target Stores
33 South Sixth Street
Post Office Box 1392
Minneapolis, Minnesota 55440-13092

RE: "Ceramic Halloween Candle Holders;" Pumpkin Shaped Jack-o'- Lanterns Capable of Illumination; Festive Articles

Dear Ms. Webster:

This letter is in response to your request of January 11, 1995, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of articles identified as "ceramic Halloween candle holders," to be imported from Taiwan. Samples were submitted with your request.

FACTS:

Each of the three samples, identified by style nos. 9-1094 and 9-8714 (2 separate versions), includes or consists of a pumpkin-shaped jack-o'-lantern in which a candle (not included) may be placed and lit to illuminate the surrounding area through classic openings in the face (mouth, eyes, and nose) and top. Style no. 9-1094 is a terra cotta candle holder measuring approximately 2 inches in height. Style no. 9-8714 is a porcelain candle holder measuring approximately 6-1/2 inches in height, with the added decorative feature of either 3 ghosts, or a witch, skull, and lizard (depending on the style version), that appear to be escaping from the jack-o'-lantern via the tipped-up, pumpkin lid. Style no. 7-0160 (sample not submitted) is said to be a porcelain candle holder in the shape of 3 jack-o'-lanterns, measuring approximately 5 inches in height, with 2 protruding ghosts escaping from the item's top. -2-

ISSUE:

Whether the articles are classified in heading 9505, HTSUS, as festive articles.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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.

Heading 9505, HTSUSA, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non- durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and -3-

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the subject articles to be made of non-durable material (since they are not designed for sustained wear and tear, nor are they purchased because of their extreme worth or value). The items also are primarily decorative in function. With respect to the third criterion, Customs classifies jack-o'- lanterns which are a) of a pumpkin shape or form, and b) capable of illumination, as traditional Halloween articles. Although two of the three styles of the merchandise contain decorative features in addition to the traditional jack-o'-lanterns (i.e., the witch, ghosts, etc.), we do not find these enhancements to be significant for classification purposes. The goods are thus classifiable in heading 9505 as festive articles. The appropriate subheading is 9505.90.6090, HTSUSA.

HOLDING:

The "ceramic Halloween candle holders," identified by style nos. 9-1094, 9-8714, and 7-0160, are classified in subheading 9505.90.6090, HTSUSA, the provision for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other, Other." The applicable duty rate is free.

Sincerely,

John Durant, Director

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