HQ 0955527 - 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. - United States International Trade Commision Rulings

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HQ 955527

March 1, 1994

CLA-2 CO:R:C:F 955527 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.99.2500; 9502.10.8000

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.

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:

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.

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.

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

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