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NY 803501




November 21, 1994

CLA-2-95:S:N:N8:225 803501

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.8000; 9502.10.4000

Mr. Robert J. Villiard
GoodShip International
1058 Tower Lane
Bensennville, IL 60106

RE: The tariff classification of scarecrows from China

Dear Mr. Villiard:

In your letter dated October 18, 1994, received in this office on October 26, 1994, you requested a tariff classification ruling on behalf of your client Elite Enterprises, Ltd.

Four samples of various sized scarecrows were submitted with your inquiry. The first item measures approximately 30 inches in height and is composed of wire, fabric and straw. The head and torso of the figure are formed by a flat piece of cardboard covered by textile material. The arms and legs are fashioned out of wire and straw tied together. The wire is concealed by the scarecrow's clothing which consists of a plaid shirt and denim pants. His hair is formed out of straw and juts out from under a fabric hat. Attached to the back of the hat is a nylon loop for hanging purposes. The cardboard head and torso give a flat appearance to the figure but this characteristic does not prevent classification as a doll. We note that the class of merchandise known as "paper dolls", which are also two dimensional figures, are considered dolls in chapter 95.

The remaining three scarecrows measure 12", 8" and 6" in height. The three are constructed in a similar manner with differences in posture and setting. As a whole, these figures are comprised of wire, fabric and straw. Their heads are made of styrofoam covered with straw. The arms and legs are formed by wire and straw tied together. As in the above case, these too wear textile clothing and hats. The figures, affixed in a standing position, are permanently attached to a base.

In your letter, you associate the scarecrows with the occasion of Halloween and regard them primarily as decorations. You refer to their design as consisting of flimsy, non-durable materials, functioning only as a decorative display item. Part of the basis for this belief is that scarecrows are sold during the commercial season of Halloween. Additionally, you cite ruling HQ 085320 in support of your position. Therefore, it is your contention that the scarecrows are classifiable in 9505.90.6090 as festive articles.

Heading 9505, HTSUSA, provides for festive, carnival or other entertainment articles. In general, merchandise is classifiable in heading 9505, 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 It is your contention that the scarecrows are classifiable in 9505.90.6090 as festive articles. 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 would agree that the subject items are made of non- durable materials (since they are not designed for sustained wear and tear, nor would they be purchased because of their extreme worth or value). It is also agreed that the figures are primarily decorative in nature, with the exception of the larger scarecrow, which is capable of manipulation and thereby provides amusement.

It is upon examination of the third criterion, however, where 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 you understandably cite a Headquarters Ruling Letter HQ 085320 - 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.

In the instant case, heading 9502, HTSUSA, provides for "dolls representing only human beings and parts and accessories thereof." The Explanatory Notes 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.

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, our headquarters 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. It was 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, those 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, it was found 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 9502.10.4000.

The applicable subheading for the 30" scarecrow will be 9502.10.8000, Harmonized Tariff Schedule of the United States (HTS), which provides for dolls representing only human beings: whether or not dressed: other: other. The rate of duty will be 12 percent ad valorem.

The applicable subheading for the 12", 8" and 6" scarecrows will be 9502.10.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for dolls representing only human beings: whether or not dressed: other: not over 33 cm in height. The rate of duty will be 12 percent ad valorem.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director
New York Seaport

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