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NY D82065




September 25, 1998

CLA-2-95:RR:NC:SP:225 D82065

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Mr. Joel K. Simon
Mr. Arlen T. Epstein
Serko & Simon, LLP
One World Trade Center, Suite 3371
New York, New York 10048

RE: The tariff classification of a Halloween decoration from China

Dear Mr. Simon and Mr. Epstein:

In your letter dated September 2, 1998, you requested a tariff classification ruling on behalf of your client Russ Berrie and Company, Inc.

The "Fabric Halloween Witch Basket," item #2626, is a textile covered basket fashioned to depict a full figured witch. The head, arms and legs are draped around the "basket" torso. A flexible fabric handle extends over the basket portion. The witch has a green face and hands that extend around the top edge of the basket. Her legs fall freely from the basket rim. She wears a black witch's hat over painted brown hair. Her stockings are green with purple stripes and her black shoes are pointed at the toes. The basket (torso area) is covered by a black fabric with stars and crescent moon shapes printed thereon. The item measures 4 inches in diameter and is approximately 2 inches deep.

The classification of merchandise under the HTS is governed by the General Rules of Interpretation (GRI'S). GRI 1 of the HTS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . ."

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding are the official interpretation of the tariff at the international level.

It is your belief that the "Fabric Halloween Witch Basket" is properly classified in Chapter 95 as a festive article based upon the court decision of Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279. As a consequence of that case 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 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.

According to your letter, the "Fabric Halloween Witch Basket" is bought and sold as a Halloween decoration. The article's unique construction, in the form of a witch, indicates that it will be primarily used as a decoration in the home. Although capable of holding a small amount of candy or similar product, any functional use the item may have is minimal in relation to its overall aesthetic appeal as an ornamental article for Halloween.

It has been established that witches are an accepted symbol of Halloween, a recognized holiday. Furthermore, you have supplied this office with supporting evidence indicating the item's intended use and sale in association with the claimed holiday. Therefore, we must conclude that the instant product qualifies as a festive article of Chapter 95. Your sample is being returned as requested.

The applicable subheading for the "Fabric Halloween Witch Basket" 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.

In regards to the "Metal Thanksgiving Cornucopia Baskets," these items are being addressed in a separate letter (see our reference NY D82066).

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 National Commodity

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