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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,

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.

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

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