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NY D82791




October 9, 1998

CLA-2-95:RR:NC:SP:225 D82791

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000; 3926.40.0000

Ms. Lori Aldinger
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE: The tariff classification of decorative ornaments from China

Dear Ms. Aldinger:

In your letter dated September 21, 1998 you requested a tariff classification ruling.

A sample and photograph of the "5 1/2" Planter with Animal" was submitted to this office for our review. Item #990311 represents an assortment of four varieties. The product is a claydough planter pot that is permanently filled with animals, ornamental picks and other embellishments. A few vines are attached at either side of the pot forming a loop overhead that facilitates handling. The clay pot measures 2 inches in height and has a diameter of 2 « inches.

You have provided us with a breakdown of component materials for the product as follows: 50% polystyrene; 15% di-2-ethyl-hexyldphthalate; 8% color powder; 17% ceramic; and 10% miscell-aneous. The styles within the assortment depict bunnies with decorated eggs, lambs, frogs and bees. It is noted that, the item containing bunnies is the only one in which decorated eggs (an accepted symbol of Easter) are part of the theme.

Based upon the recent court decision of Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279, certain articles which were perceived to be classified elsewhere in the tariff, will now fall within the realm of "festive, carnival or other entertainment articles of Chapter 95". A range of factors will be considered in making this determination, which include, among other things, the intended use of the product, relationship to a recognized holiday, basic physical characteristics and marketing of the merchandise.

In the case of the "5 1/2" Planter with Animal", the only sample which may be considered festive is the one in which decorated eggs are present, i.e., the bunny style. The remaining varieties bear no identifying features which would associate their use with Easter. These items are simply related to the season of spring and must be classified elsewhere in the tariff.

To conclude, the series of "5 1/2" Planters with Animals", item #990311, must be separately classified:

The applicable subheading for the bunny with decorated eggs in clay pot will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: other. The rate of duty will be free.

The applicable subheading for the clay pot styles that include frogs, lambs and bees, will be 3926.40.0000, (HTS), which provides for other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles. The rate of duty will be 5.3 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-466-5538.

Sincerely,

Robert B. Swierupski
Director,

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