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HQ 958013





October 18, 1995

CLA-2 R:C:T 958013 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.10.8000

Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut Street
Philadelphia, Pennsylvania 19106-3883

RE: "Halloween Spider and Pumpkin Decorations;" Articles Made Directly to Shape from Plaiting Materials; Not Festive Articles

Dear Mr. Liberati:

This letter is in response to your request of May 8, 1995, on behalf of your client, Don Wasserman, International, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of articles identified as a "Halloween spider decoration" and a "Halloween pumpkin decoration," to be imported from the Philippines. Samples were submitted with your request.

FACTS:

The two samples, both identified by item no. DS-035G, are said to be composed of unspun vegetable fibers, possibly abaca. The spider figure, which measures approximately 5 inches in length, has two main segments (head and abdomen) that apparently consist of bundles of black, unspun, untwisted fibers. Orange fibers provide a design and some accent. Eight metal wires wrapped in black fibers extend from the abdomen as legs. The pumpkin item measures approximately 10 inches in diameter, and is a flat representation of a jack-o'-lantern that is not capable of illumination. It is composed of an openwork, net-like mesh "filling" of unspun, untwisted fibers suspended in a fiber- wrapped, wire frame. All fibers are orange, except those that form the black outlines of the eyes, mouth, and nose. -2-

ISSUE:

Whether the items 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 (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 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 as traditional Halloween articles jack-o'-lanterns which are 1) of a pumpkin shape or form, and 2) capable of illumination. The pumpkin decoration satisfies neither of these criteria. Further, spiders are not traditionally associated or used with a particular festival. Although frightening to some, spiders are not the same types of articles cited in the EN to 9505, as examples of traditional, festive articles, nor do they particularly relate to Halloween. In light of the above, the items are not classified as festive articles under heading 9505, HTSUS, and must be classified elsewhere.

Among other goods, chapter 46, HTSUS, covers manufactures of straw, esparto, or other plaiting materials. In pertinent part, note 1 to chapter 46, HTSUS, states that:

"[i]n this chapter the expression "plaiting materials" means materials in a state or form suitable for plaiting, interlacing or similar processes; it includes straw...strips of wood, strips of other vegetable material (for example, raffia, narrow leaves or strips cut from broad leaves) or bark, unspun natural textile fibers....

Heading 4602, HTSUS, provides for "Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601: articles of loofah." Although as noted above, the articles are composed of both wire and fibers, the essential character of the whole is clearly imparted by the fibers, not the wire. It is our determination that heading 4602, HTSUS, most accurately provides for these items, essentially constructed from plaiting materials which consist of unspun natural textile fibers. The articles are classified in subheading 4602.10.8000, HTSUSA. -4-

HOLDING:

The "Halloween Spider Decoration" and the "Halloween Pumpkin Decoration," both identified by item no. DS-035G, are properly classified in subheading 4602.10.8000, HTSUSA, the provision for "Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601: articles of loofah: Of vegetable materials: Other: Other: Other." The applicable duty rate is 2.3 percent ad valorem.

Sincerely,

John Durant, Director

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