CLA-2 CO:R:C:F 955647 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.
5501-93-100380, filed November 12, 1993, concerning the
classification of a stuffed scarecrow.
Dear Sir:
This is a decision on a protest filed on November 12, 1993,
against your decision in the classification and liquidation of an
entry in October 1993, of stuffed scarecrows.
FACTS:
You classified the item under subheading 9502.10.2000,
HTSUSA, the provision for "Dolls representing only human beings
and parts and accessories thereof: Dolls, whether or not dressed:
Stuffed," with an applicable duty rate of 12 percent ad valorem.
Protestant claims that the item should be classified under
subheading 9505.90.6090, HTSUSA, as a festive article. The
applicable duty rate for the claimed provision is 3.1 percent ad
valorem.
The standing, stuffed scarecrow, identified by item no. 28-
3928, measures approximately nine inches in height, is dressed in
a hat and farmer's work clothes. Beige-colored strands of yarn
spill from the hat and four extremities. The figure has a round,
orange head, with stamped facial features consisting of two eyes,
a nose, and a smiling mouth.
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ISSUE:
Whether the item is classified in heading 9505, HTSUSA, as a
festive article; or in heading 9502, HTSUSA, as a doll.
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:
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);
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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 item to be made of non-durable
material (since it is not designed for sustained wear and tear,
nor is it purchased because of its extreme worth or value). The
article is primarily decorative in function, although it may be
manipulated and is apt to provide some degree of amusement.
Upon examination of the third criterion, however, we find
that scarecrows are not traditionally associated or used with a
particular festival. They 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. A
scarecrow 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 deterrents to crop scavenging, scarecrows often
represent bountiful harvests or, more generally, the season of
autumn. In light of the above, the item is not classified as a
festive article under heading 9505, HTSUSA, and must be
classified elsewhere.
While the protestant understandably cites to a Headquarters
Ruling Letter (HRL) - issued several years prior to the subject
case - in which a scarecrow figure was 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 the ruling.
With respect to the standing, stuffed scarecrow, 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
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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.
With regard to whether a scarecrow figure may be classified
as a doll representing a human being, we note that 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 stated 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.
In this case, we find that despite the scarecrow's round, orange
head, and the general perception that scarecrows are not human,
the figure is classified as a doll in subheading 9502.10.2000.
HOLDING:
The standing, stuffed scarecrow, item no. 28-3928, is
classified in subheading 9502.10.2000, HTSUSA, the provision for
"Dolls representing only human beings and parts and accessories
thereof: Dolls, whether or not dressed: Stuffed." The applicable
duty rate is 12 percent ad valorem.
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