HQ 085173: Scarecrow with Jack O'Lantern Head

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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