CLA-2 CO:R:C:G: 085321 DPS
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
Commercial Rulings Division