CLA-2 RR:CR:GC 961335 JGB
Ms. Sandi Siegel
M.E. Dey & Co., Inc.
5007 S. Howell Avenue
Milwaukee, WI 53207
RE: Painted plastic birds used as lawn ornaments and hunting
decoys; NY A87030 Modified
Dear Ms. Siegel:
This is in reference to New York Ruling Letter (NY) A87030
issued to you on September 18, 1996, on behalf of Carry-Lite Inc.
regarding the classification under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA) of plastic lawn ornaments
from Italy. We have reviewed this ruling in light of the
information provided in the letter sent by your firm, dated
November 21, 1996, and have determined that Customs erred in NY
A87030 by classifying all of the articles as other articles of
plastics in subheading 3926.40.0000, HTSUSA.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057), on March 4,
1998, Customs published a notice in the Customs Bulletin, Vol.
32, No. 9, proposing to modify New York Ruling Letter (NY)A87030,
issued September 18, 1996, pertaining to the classification of
plastic lawn ornaments and inviting comments on the correctness
of the proposed modification. No comments were received in
response to this notice.
FACTS:
The initial ruling identified eight articles depicted in a
submitted brochure which were said to be used as garden ornaments
to simulate wildlife. These items included: item #1750,
Flamingo; item #591, Swan; item #5500, DXL Canada Goose; item
#6752, Peregrin Falcon; item #6052, Great Horned Owl; item #590,
Canada Goose; item #1500, Heron, and item #9885, Pheasant. We
note that four of the items are also included in the Carry-Lite/Sport Plast Hunting Decoys catalog issued by your client,
and that those articles appear to be designed and principally
used as hunting decoys. As the letter from your firm indicates,
those articles are as follows: item #6052, Great Horned Owl; item
#1500, Heron; item #590, Canada Goose and item #5500, DLX Canada
Goose.
ISSUE:
Whether articles which by their design and construction
appear to be principally used as hunting decoys, but which are
also marketed and sold as lawn ornaments, are classified in
heading 9507, HTSUSA, as decoy "birds" or as other articles of
plastics in heading 3926, HTSUSA.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. Tariff classification is governed by the principles set
forth in the General Rules of Interpretation (GRIs) and, in the
absence of special language or context which otherwise requires,
by the Additional U.S. Rules of Interpretation. The GRIs and the
Additional U.S. Rules of Interpretation are part of the HTSUSA
and are to be considered statutory provisions of law for all
purposes.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRIs taken in their
appropriate order. GRI 6 requires that the classification of
goods in the subheadings of headings shall be determined
according to the terms of those subheadings, any related
subheading notes and, mutatis mutandis, to the GRIs.
Heading 9507 provides for "Fishing rods,...decoy
birds'(other than those of heading 9208 or 9705) and similar
hunting or shooting equipment; parts and accessories thereof."
This heading by its terms is governed by use, that is, articles
classified therein must be used for fishing, hunting, shooting,
or as decoys.
Use provisions are governed by the Additional U.S. Rule of
Interpretation 1(a) which states that: "1. In the absence of
special language or context which otherwise requires-- (a) a
tariff classification controlled by use (other than actual use)
is to be determined in accordance with the use in the United
States at, or immediately prior to, the date of importation, of
goods of that class or kind, to which the imported goods belong,
and the controlling use is the principal use." Principal use is
that use which exceeds any other single use of the article.
Additional U.S. Rule 1(a) requires an analysis of the use of
the product to arrive at the correct classification. Any product
may have a variety of uses, but the rules of tariff
classification require that the product be classified according
to that use that exceeds all other single uses of goods of that
class or kind. With regard to the decoys/lawn ornaments in this
case, the products appear to possess features that adapt them for
use as hunting decoys, namely, non-glare paint, flat bottoms,
leaded or weighted keel for stability and ballast, or hooks, a
stake, hangers, chain and anchors, or other anchoring system to
permit effective decoy use. These characteristics indicate that
the products fit within a class of goods used as hunting decoys.
Moreover, there appear to be no characteristics inconsistent with
their use as decoys.
Heading 3926 provides for "Other articles of plastics and
articles of other materials of headings 3901 to 3914." This
provision could describe the product, if there were no heading
for decoy "birds" and similar hunting or shooting equipment.
However, this residual plastics provision cannot take precedence
over a specific use provision.
Your client may be augmenting the sales of its decoys by
advertising and selling them as realistic lawn ornaments and this
use may be financially beneficial to him. However, at least four
of the articles are, by their construction and characteristics,
within the class of goods principally used as hunting decoys and
must be classified accordingly. The other birds covered by NY
A87030, namely, the Flamingo (#1750), the Swan (#591), the
Peregrin Falcon (#6752), and the Pheasant (#9885) do not fall
into the class of decoy birds, because such birds are not used as
decoys. They remain classified in subheading 3926.40.0000,
HTSUSA, as "Other articles of plastics and articles of other
materials of headings 3901 to 3914: Statuettes and other
ornamental articles."
HOLDING:
Item #5500, DXL Canada Goose; item #6052, Great Horned
Owl; item #590, Canada Goose; and item #1500, Heron are
classified in subheading 9507.90.8000, HTSUSA, the provision for
"Fishing rods,...decoy birds'(other than those of heading 9208
or 9705) and similar hunting or shooting equipment; parts and
accessories thereof: Other: Other, including parts and
accessories: Other, including parts and accessories" dutiable at
the column one general rate of 9 percent ad valorem. NY A87030
is modified accordingly.
In accordance with 19 U.S.C. 1625(c), this ruling will
become effective 60 days after its publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to 19
U.S.C. 1625(c) does not constitute a change of practice or
position in accordance with section 177.10(c)(1), Customs
Regulations (19 CFR 177.10 (c)(1)).
Sincerely,
John Durant,
Director
Commercial Rulings
Division