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HQ 085408


October 31, 1989

CLA-2 CO:R:C:G 085408 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

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

RE: Classification of a Halloween candy dish

Dear Ms. Jacobs:

This is in response to your letter dated August 23, 1989, on behalf of K Mart Corporation, requesting the classification of a Halloween ceramic candy dish under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is a small ceramic candy dish in the shape and color of a pumpkin. The design painted on the front of the dish is the face of a jack-o'-lantern which depicts fright or alarm. The ceramic dish measures approximately 5-1/2 inches in diameter and 3-1/2 inches in depth. The dish is designed to be used to serve candy. Additionally, the box in which the bowl is enclosed is also orange and decorated with ghosts, bats, and pumpkins. The article will be imported from Taiwan.

ISSUE:

Is the ceramic candy dish properly classifiable under heading 9505, HTSUSA, which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories, or under heading 6912, HTSUSA, which provides for ceramic tableware, inter alia, or under another provision of the tariff?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

The subject merchandise may be classified under three possible headings in the HTSUSA. Heading 9505, HTSUSA, governs, among other things, festive carnival or other entertainment articles. Heading 6913, HTSUSA, governs statuettes and other ornamental ceramic articles, whereas, heading 6912, HTSUSA, covers ceramic tableware, kitchenware, other household articles and toilet articles, among other things. In the case where an item is classifiable under more than one heading, GRI 3(a) states that the heading which provides the most specific description will be preferred to headings providing a more general description.

Counsel for the importer maintains that the article is properly classifiable under Chapter 95 which provides for festive articles. The attorney is of the opinion that the sample article falls under heading 9505, HTSUSA, since the decoration on the dish depicts a festive Halloween atmosphere.

It is Customs position that the subject merchandise is properly classifiable under heading 9505, HTSUSA. Heading 9505, HTSUSA, includes, among other things:
festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material.

The Explanatory Notes to Heading 9505, which constitutes the official interpretation of the tariff at the international level, make clear that the heading encompasses the following articles:

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.

It is Customs position that an article by its shape, design, and ornamentation which is appropriately used only in connection with a recognized festive holiday is an article that falls under Chapter 95, HTSUSA. In the instant case, the subject merchandise is a decorative bowl in the shape of a pumpkin. Painted on one side of the bowl is the face of a jack-o'-lantern which is one of the most recognizable symbols associated with the Halloween holiday. Moreover, the candy dish is designed to be used during Halloween to decorate the house or as the container from which Halloween candy may be distributed to trick-or- treaters. It is unlikely that a consumer would purchase and use this article during any other time of the year. Thus, based on the foregoing reasons, it is apparent that the candy dish is intended to be used as a "festive article" during Halloween and is more specifically described under heading 9505, HTSUSA, which covers "festive articles." Since the candy dish is not the type of article which falls under the subheadings providing for Christmas festivities, magic tricks or confetti, it is classifiable under subheading 9505.90.6000, HTSUSA, which provides for, inter alia, other festive articles.

HOLDING:

In the instant case, the sample article is properly classifiable under subheading 9505.90.6000, HTSUSA, which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; Other. The applicable rate of duty is 3.1% ad valorem. Items classifiable under this subheading may be eligible for duty free treatment under subheading 9902.71.13, HTSUSA, if they are not valued at over five cents per unit.

Sincerely,

John Durant, Director
Commercial Rulings Division

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