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HQ 089465


August 15, 1991

CLA-2 CO:R:C:M 089465 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6809.90.00

Ms. Mona Webster
Target Stores
33 South Sixth Street
P.O Box 1392
Minneapolis, MN 55440-1392

RE: House decorated with ghosts and pumpkins; Festive articles; Heading 9505; Ornamental ceramic articles; Decorative articles; Heading 6809

Dear Ms. Webster:

This is in response to your letter of April 25, 1991, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for a gypsum lighted house imported from Taiwan. A sample was submitted for our examination.

FACTS:

The article at issue is a gypsum house decorated with ghosts, pumpkins and a skull with cross bones. The house lights up from within and produces a scary sound when turned on. The light and the sound are battery operated.

ISSUE:

Whether the gypsum house is classifiable as a festive article in Heading 9505, HTSUSA, or in Heading 6809, HTSUSA, which provides for articles of plaster or of compositions based on plaster.

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.

Heading 9505, HTSUSA, provides for festive, carnival, and other entertainment articles. The Explanatory Notes for the HTS, although not dispositive, are to be looked to for the proper interpretation of the HTS. The Explanatory Note to Heading 9505, HTSUSA, indicates 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 holiday are also classified here.

Articles classifiable in Heading 9505, HTSUSA, tend to have no other function than decoration. Heading 9505, HTSUSA, is generally regarded as a use provision. Hence, Additional U.S. Rule of Interpretation 1(a) must be considered.

Additional U.S. Rule of Interpretation 1(a) indicates that:

In the absence of special language or context which otherwise requires--
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

While the subject item is decorative, gypsum houses as a class or kind of merchandise are not specifically holiday related; they are used all year round and come in a wide variety of motifs. Accordingly, the instant gypsum house is not classified as a festive article in Heading 9505, HTSUSA. The classification must be found elsewhere.

Heading 6809, HTSUSA, provides for articles of plaster or of compositions based on plaster. The Explanatory Notes to Heading 6809, HTSUSA, provide that this heading includes "moulded articles such as casts, statues, statuettes rosettes, columns, bowls, vases, ornamental goods, industrial moulds." The gypsum house is ornamental and decorative. Heading 6809, HTSUSA, is the appropriate heading for the instant article.

HOLDING:

The gypsum house is classifiable in subheading 6809.90.00, HTSUSA, which provides for articles of plaster or compositions based on plaster, other articles. The rate of duty is 5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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