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HQ 956050


May 26, 1994

CLA-2 CO:R:C:F 956050 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Ms. Sheila Maddux
DJS International Services, Inc.
8411 Sterling, Suite 101
Irving, Texas 75063

RE: Scarecrow Decorative Pick

Dear Ms. Maddux:

This letter is in response to your request of November 8, 1993, on behalf of your client, Raz Imports, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a scarecrow pick imported from China. A sample pick and photographs were submitted with your inquiry.

FACTS:

The scarecrow pick, identified by article no. H31504, consists of two styrofoam balls (representing the head and body) covered with colored paper, a burlap shirt and hat, and a tie and hair of corn husk material. The figure has black paper facial features, measures approximately six inches in height, and sits atop a wooden stick measuring approximately seven inches in length.

ISSUE:

Whether the pick is classified in heading 9505, HTSUS, as a festive article, or in the heading which covers the component providing the whole article with its essential character.

LAW AND ANALYSIS:

Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, 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, HTSUS, 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 article 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 item is also primarily decorative in function.

Upon examination of the third criterion, however, neither picks nor scarecrows are traditionally associated or used with a particular festival. Decorative picks in general have diverse uses throughout the year in a wide variety of motifs. Scarecrow picks 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. Relative to their function as a deterrent to crop scavenging, scarecrows often represent bountiful harvests or, more generally, the season of autumn. The item is thus not classified as a festive article in heading 9505, HTSUS, and must be classified elsewhere.

The pick is comprised of several components (i.e., styrofoam, paper, burlap, wood, and corn husk) provided for in separate headings. We thus look to GRI 2(b), which in pertinent part states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that, when the headings each refer to only part of the items of a composite good, the headings are regarded as equally specific. Therefore, we next look to GRI 3(b), which states that:

[m]ixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Although covered by paper, burlap, and corn husk materials, the styrofoam comprises the greatest share of the article's bulk, weight, and value, and provides the essential shape upon which the other items are fastened to decorate. Therefore the styrofoam component gives this composite article its essential character.

Heading 3926, HTSUS, provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicates that the heading covers articles of plastics or other materials not elsewhere included or specified, including (among other items) statuettes and other ornamental articles. At the six-digit subheading level, 3926.40, HTSUS, includes other articles of plastics, statuettes and other ornamental articles. Since the scarecrow pick functions primarily as a decoration, it is classified in subheading 3926.40.00, HTSUS, as other articles of plastics, statuettes and other ornamental articles.

HOLDING:

The decorative scarecrow pick, identified by article no. H31504, is classified in subheading 3926.40.00, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The applicable duty rate is 5.3 percent ad valorem.

Sincerely,

John Durant, Director

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