CLA-2 CO:R:C:F 951897 LPF
Ms. Mary E. Keller
A.W. Fenton Company, Inc.
P.O. Box 75029
Cincinnati, OH 45275-0029
RE: Glow Monster jack-o'-lantern; 9505.90.60 HTSUSA; Festive
article.
Dear Ms. Keller:
This is in response to your letter of April 23, 1992
submitted on behalf of Kenley Corporation, regarding the proper
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of a Glow Monster jack-o'-
lantern. You submitted a picture of the article with your
request for a binding ruling.
FACTS:
The Glow Monster, imported from Korea, consists primarily of
a large plastic bag measuring 52 by 60 inches which, when
assembled, has not only the appearance, but also the form of a
jack-o'-lantern. A plastic frame, electric socket and light bulb
will be packaged with the bag. The frame must be assembled and
inserted in the bag. The bag is then pulled up around the frame
and tied with a fastener on top. When plugged in, the light
illuminates the bag, in its form as a jack-o'-lantern. The
article may be used indoors or outdoors.
ISSUE:
Whether the Glow Monster jack-o'-lantern is classifiable in
heading 9505, HTSUSA, as a festive article, or is classifiable
elsewhere.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
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section or chapter notes. The Explanatory Notes (EN's) 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, provides for, inter alia, festive,
carnival and other entertainment articles. The EN's to 9505
indicate 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 general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable 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).
An article's satisfaction of these three criteria is indicia
that it is classifiable as a festive article. The motif of an
article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
First, the Glow Monster is made of non-durable material.
Customs will consider an article, such as the Glow Monster, to be
made of non-durable material since it is not designed for
sustained wear and tear, nor is purchased because of its extreme
worth or value (as would be the case with a decorative, yet
costly, piece of art or crystal).
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Next, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the Glow Monster serves
no useful function besides its use as a decoration.
Finally, when examining the Glow Monster, as a whole, it is
evident that the article is traditionally associated or used with
the particular festival of Halloween. Customs will classify
jack-o'-lanterns which are a) of a pumpkin shape or form and b)
capable of illumination, as traditional Halloween articles.
Since the Glow Monster, albeit a stylized version of a jack-o'-
lantern, fits this description, and satisfies the three criteria,
in general, it is classifiable in heading 9505 as a festive
article. The appropriate subheading is 9505.90.60.
HOLDING:
The Glow Monster jack-o'-lantern is classifiable in
subheading 9505.90.60, HTSUSA, as "Festive, carnival or other
entertainment articles, including magic tricks and practical joke
articles; parts and accessories thereof: Other: Other." The
general column one rate of duty is 3.1 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division