HQ 958013: "Halloween Spider and Pumpkin Decorations;" Articles Made Directly to Shape from Plaiting Materials; Not Festive Articles

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           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
                               Tariff Classification
                               Appeals Division