HQ 957954: Request for tariff classification of "Ceramic HalloweenPumpkin Bag Tealite"

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.

                         October 12, 1995


                            HQ  957954


CLA-2   R:C:F   957954   ASM

CATEGORY:  Classification

TARIFF NO.: 6913.90.5000

Ms. Lori Aldinger
Import Coordinator
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA   17105

RE:  Request for tariff classification of "Ceramic Halloween
Pumpkin Bag Tealite" 

Dear Ms. Aldinger:

     This letter is in response to your request for a ruling
regarding the classification of a product identified as a
"Ceramic Halloween Pumpkin Bag Tealite." 

FACTS:

     The subject item is described as a "ceramic votive candle
holder shaped to represent a Halloween pumpkin bag" and is to be
used for lighting/decorative purposes.   The instant candle
holder is an orange ceramic piece, with "cut-out" eyes and mouth,
resembling that of a jack-o-lantern.  The article is square in
shape (2.5 x 2.5 inches) with indentations on the side and a
jagged edge along the top which suggests a paper bag design. 

      It is noted that the Rite Aid Corporation will be importing
these items for the Halloween selling season.
  
ISSUE:

     What is the correct tariff classification for a product
identified as a "Ceramic Halloween Pumpkin Bag Tealite?"

                              - 2 -

                                 
LAW AND ANALYSIS:

     Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's).  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 GRI's 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.

     Heading 9505, HTSUSA, includes articles which are for
"Festive, carnival, or other entertainment purposes."  The EN's
to 9505, state 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 Headquarters Ruling Letter (HRL) 951897, issued August
26, 1992, it was determined that a "Glow Monster" jack-o-lantern,
was classifiable in subheading 9505.90.60, HTSUSA, as a festive
article, when the article, as a whole, met the following
criteria:

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


     Although this product appears to be of nondurable material
which functions primarily as a decoration, we have determined
that it does not meet the criteria established for classification
as a "festive" article within subheading 9505.90, HTSUSA.  The
fact that the article is packaged under the name "Ceramic
Halloween Pumpkin Bag Tealite" does not, in and of itself, convey
the requisite association with Halloween.  Nor does the fact that
the Rite Aid Corporation intends to purchase this article for the
Halloween selling season.

     This article is, in fact, designed as a "luminaria." 
Luminaria are ceramic or plastic bags with candles inside.  They
are popular in Latin America and the Southwest U.S. and are not
traditionally used or associated with Halloween or any particular
festival.  This article is a square shaped ceramic piece,
designed to hold a lighted candle.  The item has etched and
sculptured markings on the sides and a jagged edging at the top,
which clearly conveys the appearance of a bag.  There can be no
question that this is a luminaria and not a round pumpkin or
jack-o-lantern which may be associated with the Halloween season. 
The bright orange color of the ceramic piece and cut-out
eyes/mouth are not enough to convey the impression of a jack-o-lantern rather than a luminaria.

     The EN's to heading 6913, HTSUSA, state that the heading
"... covers a wide range of ceramic articles of the type designed
essentially for the interior decoration of homes, offices,
assembly rooms, churches, etc., and outdoor ornaments (e.g.,
garden ornaments)."  The EN's further state that heading 6913
covers:

     (A) Articles which have no utility value but are wholly
ornamental, and articles whose only usefulness is to support or
contain other decorative articles or to add to their decorative
effect, e.g.:
     
          (1)  Statues, statuettes, busts, haut or bas reliefs,
and other figures for interior or exterior decoration; ornaments
(including those forming parts of clock sets) for mantelpieces,
shelves, etc., (animals, symbolic or allegorical figures, etc.);
sporting or art trophies; wall ornaments incorporating fittings
for hanging (plaques, trays, plates); medallions; firescreens;
artificial flowers, fruit, leaves, etc.; wreaths and similar
ornaments for tombs; knick-knacks for shelves or domestic
display-cabinets.

                         *      *      *

     It is our determination that the article in question is
specifically described by heading 6913, HTSUSA, which provides
for statuettes and other ornamental ceramic articles.  Clearly,
the article may be used for interior or exterior decoration and
to ornament a mantelpiece or shelve.  It may also be used as a
knick-knack in a display cabinet.  Furthermore, the subject
luminaria is wholly ornamental; other than providing a holder for
a candle, it serves no utilitarian purpose.  If a candle is
inserted, it would merely enhance the decorative value of this
article.
                              - 4 -


HOLDING:

     The product identified as a "Ceramic Halloween Pumpkin Bag
Tealite," is properly classifiable within subheading
6913.90.5000, HTSUSA, which provides for "Statuettes and other
ornamental ceramic articles: Other: Other: Other."  This
provision is dutiable at 6.8% under the general column one rate.
 
                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division