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HQ 085321


May 10, 1990

CLA-2 CO:R:C:G: 085321 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ned H. Marshak, Esquire
Sharrets, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, N.Y. 10004

RE: Scarecrow Figure

Dear Mr. Marshak:

Your letter of July 26, 1989, on behalf of K mart Corporation, to our New York office has been referred to this office for reply concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a scarecrow figure to be imported from Taiwan. A supplementary submission was made on January 10, 1990, and a meeting was held on January 26, 1990, in which Mr. Duncan Nixon of your office discussed issues relevant to this classification decision with a member of my staff. You submitted further information by letter dated February 12, 1990, concerning the association of scarecrows with Halloween.

FACTS:

The submitted sample, code number 32-67-92, known as the "Scarecrow with Pumpkin Face," is approximately 24 inches tall and clothed in flannel and burlap. The article is stuffed from the torso to the groin with traditional stuffing materials and fully distended. The head of the scarecrow, which is composed of an orange styrofoam ball designed to resemble a pumpkin, has straw hair and is covered with a burlap hat. The facial features are composed of felt appliques with a fluffy pom-pom nose. The figure is mounted on a wooden slab base.

ISSUE:

Whether the scarecrow figure is classifiable as a festive article under Heading 9505?
LAW & ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the tariff headings and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's.

You assert that the subject merchandise is classifiable under Heading 9505, HTSUSA, as a festive, carnival or other entertainment article. Upon review of the tariff language of Heading 9505, and the Explanatory Notes thereto, which constitute the official interpretation of the tariff at the international level, we agree. The Explanatory Notes to Heading 9505 state that the heading includes items considered to be "other decorations...traditionally associated with a particular festival." As we have stated in the past with regard to the festive article heading, items classified there tend to possess no function other than decoration.

Here, the subject scarecrow is so flimsily constructed that it negates any use as a toy. The importer has indicated that the scarecrows are sold in K mart's retail stores solely during the two months preceding Halloween and are removed at the beginning of November, immediately after the Halloween festival. The importer's counsel has also established that scarecrows are, to at least a minimal extent, associated with the Halloween festival. The subject figures are intended to be used to decorate during Halloween and are marketed as such. They are sold in the same department within each K- mart store along with other Halloween decorations. These facts support the conclusion that the subject scarecrow figure is classifiable as a festive article within Heading 9505.

HOLDING:

The subject scarecrow figure is properly classifiable as a festive, carnival or other entertainment article, other, under subheading 9505.90.6000, HTSUSA. Items classified under this provision are subject to a duty rate of 3.1 percent ad valorem.

Sincerely,

John Durant, Director

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