CLA-2 CO:R:C:F 955527 GGD
District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-93-100349, filed October 25, 1993, concerning the
classification of articles identified as a standing witch
with broom and a seagrass scarecrow.
Dear Sir:
This is a decision on a protest timely filed on October 25,
1993, against your decision in the classification and liquidation
of an entry in October 1993, of standing witches with brooms and
seagrass scarecrows.
FACTS:
You classified the witch with broom under subheading
9502.10.8000, HTSUSA, the provision for "Dolls representing only
human beings and parts and accessories thereof: Dolls, whether or
not dressed: Other: Other: Other," with an applicable duty rate
of 12 percent ad valorem. You classified the seagrass scarecrow
under subheading 6304.99.2500, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), the provision for "Other
furnishing articles, excluding those of heading 9404: Other: Not
knitted or crocheted, of other textile materials: Other: Of
vegetable fibers (except cotton): Wall hangings of jute," with an
applicable duty rate of 12.8 percent ad valorem.
Protestant claims that both articles should be classified
under subheading 9505.90.6090, HTSUSA, as festive articles. The
applicable duty rate for the claimed provision is 3.1 percent ad
valorem.
-2-
The standing witch with broom, identified by item no. HC
31115, is formed by cardboard and wire, has a rubber head and
upper extremities, and wears a fabric dress and hat. The figure
measures approximately sixteen inches in height. The seagrass
scarecrow, identified by item no. HC 8343, is sold unstuffed and
flat in four assorted styles, has a string for hanging, and
measures approximately 36 inches in height.
ISSUE:
Whether or not the items are classified as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs may then
be applied. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Heading 9505, HTSUSA, provides for, among other items,
festive, carnival or other entertainment articles. The EN to
heading 9505 states, in part, 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., for
Christmas trees (e.g., tinsel, stars, icicles),
artificial snow, coloured balls, bells, lanterns, etc.
Cake and other decorations (e.g., animals, flags) which
are traditionally associated with a particular festival
are also classified here.
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
-3-
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
We consider the subject articles to be made of non-durable
material (since they are not designed for sustained wear and
tear, nor are they purchased because of their extreme worth or
value). The items are primarily decorative in function, although
the witch figure may be manipulated and is apt to provide some
degree of amusement.
Upon examination of the third criterion, however, witches
and scarecrows are not traditionally associated or used with a
particular festival. Witches and scarecrows are not the same
types of articles cited in the ENs to 9505, as examples of
traditional, festive articles, nor do they particularly relate to
Halloween. Witches are often the subject of mythology, history,
plays, movies, and cartoons bearing no significance to a festival
or holiday. A scarecrow, likewise, is a leading character in the
classic motion picture "The Wizard of Oz" as well as its numerous
adaptations for theater, television, printed media, etc.
Relative to their function as a deterrent to crop scavenging,
scarecrows often represent bountiful harvests or, more generally,
the season of autumn. In light of the above, the items are not
classified as festive articles under heading 9505, HTSUSA, and
must be classified elsewhere.
While the protestant understandably cites three Headquarters
Ruling Letters (HRLs) - each issued several years prior to the
subject case - in which scarecrow figures were classified in
heading 9505, HTSUSA, the findings contained therein no longer
reflect Customs position regarding the classification of festive
articles. Appropriate action is currently being taken to revoke
or modify those rulings.
-4-
With respect to the standing witch with broom, heading 9502,
HTSUSA, provides for "Dolls representing only human beings and
parts and accessories thereof." The ENs to heading 9502 indicate
that the heading includes not only dolls designed for the
amusement of children, but also dolls intended for decorative
purposes (e.g., boudoir dolls, mascot dolls), or for use in Punch
and Judy or marionette shows, or those of a caricature type.
In HRL 952821, issued March 3, 1993, this office held that
figures of a witch and a vampire were classified not as festive
articles in heading 9505, HTSUSA, but as dolls in heading 9502.
We noted that, although the nose, chin, or teeth of such figures
might be bigger/longer than the usual human feature counterparts,
and although a figure might be widely recognized as a non-human
creature in popular culture, these embellishments and cultural
perceptions did not render the figures non-human creatures for
classification purposes. See HRL 950698, issued March 20, 1992.
The standing witch with broom is thus classified as a doll in
subheading 9502.10.8000.
With regard to the seagrass scarecrow, heading 6304, HTSUSA,
provides for "Other furnishing articles, excluding those of
heading 9404." The EN to heading 6304 indicates, in pertinent
part, that the heading covers articles of textile materials for
use in the home, public buildings, theaters, and churches,
including wall hangings and textile furnishings for ceremonies.
It is our determination that heading 6304 most accurately
provides for the hanging, decorative nature of this two
dimensional scarecrow, and that the article is classified in
subheading 6304.99.2500, HTSUSA.
HOLDING:
The standing witch with broom, item no. HC 31115, is
classified in subheading 9502.10.8000, HTSUSA, the provision for
"Dolls representing only human beings and parts and accessories
thereof: Dolls, whether or not dressed: Other: Other: Other."
The applicable duty rate is 12 percent ad valorem.
The seagrass scarecrow, item no. HC 8343, is classified in
subheading 6304.99.2500, HTSUSA, the provision for "Other
furnishing articles, excluding those of heading 9404: Other: Not
knitted or crocheted, of other textile materials: Other: Of
vegetable fibers (except cotton): Wall hangings of jute." The
applicable duty rate is 12.8 percent ad valorem.
-5-
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Lexis, the Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division