CLA-2 CO:R:C:F 956050 GGD
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
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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.
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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.
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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
Commercial Rulings Division