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May 12, 1999

CLA-2-95:RR:NC:SP:225 E80830

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000; 6912.00.4810

Ms. Yolanda S. Massey
Michaels® Stores, Inc.
8000 Bent Branch Drive
Irving, Texas 75063

RE: The tariff classification of Halloween candy jars from China

Dear Ms. Massey:

In your letter dated April 12, 1999, received in this office on April 14, 1999, you requested a tariff classification ruling.

The products are Halloween candy jars made of 100% dolomite. According to your letter, the articles were shaped prior to being fired. They are categorized as earthenware ceramic. The approximate size of the jars is 4 3/4" X 5" X 5 1/4".

Item XC8183 consists of four different designs; style A depicts a turkey in pilgrim attire, style B portrays a jack-o-lantern, styles C and D resemble the heads of characters. Item XC1503 includes 5 different designs; style A represents the head of a witch, style B depicts a green head wrapped in bandages, styles C and E resemble a jack-o-lantern, and style F depicts the head of Dracula. You have stated that all the candy jars will be merchandised during the Halloween season, however, no marketing literature was presented in support of this.

The court decision of Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279 has resulted in the classification of certain articles to fall within the provision for "festive, carnival or other entertainment articles of Chapter 95". A range of factors are 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 a utilitarian article, the court has accepted only three dimensional, full bodied representations of accepted symbols of a recognized holiday. A list of accepted motifs or symbols for various holidays may be found in the Informed Compliance Handbook on the Classification of Festive Articles, dated November 1997. The handbook further indicated that the stated symbols were not definitive and that additional motifs would be added.

Obviously, in addition to their decorative qualities, the instant candy jars serve a utilitarian function in holding candies. Therefore, only those items which possess a three dimensional representation of an accepted symbol, of a recognized holiday will qualify for the festive article provision. It has been established that the three dimensional representation of a jack-o-lantern (item XC8183 - B and item XC1503 - C and E) is an accepted symbol of Halloween, a recoginized holiday. The witch’s head (item XC8183 - A), though not listed in the handbook, is so closely linked with Halloween, a recognized holiday, that it will be adopted as an additional accepted symbol of that holiday.

It has not been established that the remaining candy jars are inherently designed for use in celebration of, or for entertainment on, the given holiday of Halloween. Although of fancy design, the products simply resemble amusing characters which are not necessarily associated with any particular occasion and may be displayed in one’s home throughout the year. Therefore, these items do not fall within the realm of festive articles and are classified elsewhere in the tariff.

The applicable subheading for item XC8183 - style B, and item XC1503 - styles A, C and E 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 item XC8183 - styles A, C and D, and item XC1503 - styles B and F will be 6912.00.4810, Harmonized Tariff Schedule of the United States (HTS), which provides for other ceramic tableware and kitchenware...other than of porcelain or china...suitable for food or drink contact. The rate of duty will be 9.8 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 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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