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HQ 085173


October 26, 1989

CLA-2 CO:R:C:G: 085173 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ned H. Marshak, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. Sixty-seven Broad Street
New York, N.Y. 10004

RE: Scarecrow with Jack O'Lantern Head

Dear Mr. Marshak:

This ruling letter is in response to your inquiry of June 27, 1989, on behalf of K mart Corporation, regarding classification of a scarecrow with a jack o'lantern head under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The sample submitted, identified as K mart Code No. 32-67- 94, is a scarecrow figure with a jack o'lantern head. The figure measures approximately 36 inches from head to toe. It has straw- like extremities and a styrofoam torso. The head is a hollow styrofoam form in the shape of pumpkin with a traditional jack o'lantern face composed of felt pieces. Attached to the top of the head is straw hair and a burlap type material hat. The figure is clothed in the same burlap type material.

ISSUE:

Whether the item is considered a festive article, classifiable under subheading 9505.90.6000, HTSUSA.

LAW & ANALYSIS

The General Rules of Interpretation (GRI's) govern classification under the HTSUSA. According to GRI 1, the primary consideration in determining whether merchandise should
be classified in a heading should be given to the language of the heading and any relevant chapter or section notes, and, provided such headings or notes do not otherwise require, according to the remaining GRI's, taken in order.

The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision. With regard to Heading 9505, HTSUSA, the provision for festive articles, Explanatory Note 95.05, at p. 1590, states 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.,...and other decorations which are traditionally associated with a particular festival...

The items described above which are classifiable under Heading 9505, HTSUSA, tend to have no function other than decoration.

The pumpkin headed scarecrow at issue is made of non-durable materials and depicts a Halloween/fall harvest theme. It is clearly associated with Halloween and serves a solely decorative function. Therefore, the item is properly classifiable under the provision for festive articles, subheading 9505.90.6000, HTSUSA.

HOLDING:

The subject scarecrow with jack o'lantern head is classified under subheading 9505.90.6000, HTSUSA, as a festive, carnival or other entertainment article. Items classified under this subheading are subject to a duty rate of 3.1 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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