HQ 958484: Modification of HRL 085343 concerning the tariff classification of ceramic luminaria

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.

                           May 30, 1996


                            HQ 958484


CLA-2   RR:TC:FC   958484   ASM

CATEGORY:  Classification

TARIFF NO.: 6913.90.5000

Ms. Brenda A. Jacobs
Sharretts, Paley, Carter & Blauveldt
1707 L Street, N.W.
Washington, D.C.  20036

     RE:  Modification of HRL 085343 concerning the
             tariff classification of ceramic luminaria

Dear Ms. Jacobs:

     This letter concerns the modification of Headquarters Ruling
Letter (HRL) 085343, dated December 7, 1989, in which you were
advised of the classification of ceramic luminaria (identified as
item no. 32-61-23) under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).  Pursuant to section 625,
Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of
Title VI (Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057,
2186 (1993) (hereinafter section 625), notice of the proposed
revocation of NYRL 893043 was published     April 17, 1996, in
the Customs Bulletin, Volume 30, Number 16.

FACTS:

     The subject articles are rectangular shaped ceramic
luminaria.  They are designed to look like paper bags having
holes representing eyes, nose, and mouth.  The luminaria have
large openings in back to accommodate a candle placed in the base
of the ceramic.  The tops of the luminaria are open.   
     
     In HRL 085343, dated December 7, 1989, this item was held to
be classifiable under subheading 9505.90.6000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for "Festive, carnival or other entertainment articles, including
magic tricks and practical joke articles; parts and accessories
thereof:  Other: Other."                               - 2 -

ISSUE:

     Whether rectangular shaped ceramic luminaria are properly
classified as "festive articles" under heading 9505, HTSUSA, or
as "ornamental ceramic articles" under heading 6913, HTSUSA.

LAW AND ANALYSIS:

     Classification of merchandise under the 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 to
the Harmonized Commodity Description and Coding System (EN's),
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 identified as a "Ceramic Halloween
candle holder" does not, in and of itself, convey the requisite
association with Halloween. 

     These articles are, in fact, designed as  "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 rectangular shaped ceramic piece,
designed to mimic a paper bag and to hold a lighted candle.  
There can be no question that these are luminaria and not round
pumpkin jack-o-lanterns which may be associated with the
Halloween season.  The orange color and cut-out eyes/mouth are
not enough to convey the impression of jack-o-lanterns rather
than luminaria.  See HRL 957954.

     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 articles in question are
specifically described by heading 6913, HTSUSA, which provide for
statuettes and other ornamental ceramic articles.  Clearly, these
articles may be used for interior or exterior decoration and to
ornament a mantelpiece or shelf.  They may also be used as
knickknacks in a display cabinet.  Furthermore, the subject
luminaria are wholly ornamental; other than providing a holder
for a candle, they serve no utilitarian purpose.  If candles are
inserted, they would merely enhance the decorative value of these
articles.
                              - 4 -

HOLDING:

     The product identified as a "Ceramic Halloween candle
holder" (item no. 32-61-23) 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 6.6 percent ad valorem
under the general column one rate. 

     Headquarter's Ruling Letter  085343, dated December 7, 1989,
is hereby modified.  In accordance with section 625, this ruling
will become effective 60 days after its publication in the
Customs Bulletin.  Publication of rulings or decisions pursuant
to section 625 does not constitute a change of practice or
postion in accordance with section 177.10(c)(1), Customs
Regulations (19 CFR 177.10(c)(1)).
 
                              Sincerely, 


                              John Durant, Director
                              Tariff Classification
                              Appeals Division