Scarecrow Snowman Lawn Ornament

HQ 961519 February 24, 1999 CLA2 RR:CR:GC 961519 MMC CATEGORY: Classification TARIFF NO.: 6307.90.9989 Ms. Lynn O’Beirn Four Star International Trading Company 3330 East 79th Street Cleveland, Ohio 44127 RE: Scarecrow Snowman Lawn Ornament Dear Ms. O’Beirn: This is in response to your December 29, 1997, letter and undated follow-up letter, to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for an article described as a “Snowman Style Scarecrow” under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with your request. Your letters were referred to this office for reply. We regret the delay in replying. FACTS: The lawn ornament measures approximately 5 feet high. It consists of 2 wooden poles bolted together in a cross-like posture. A variety of nylon woven fabric stuffed with polyester fibers drapes both poles. The fabric draping the vertical pole consists of a pair of blue “patched” pants with brown stuffed feet attached as well as a stuffed white snowman head under a black, yellow banded hat. The hat has a sprig of holly attached. The horizontal pole is draped with a polyester-like black “shirt” with yellow buttons. The shirt has a stuffed green and white scarf attached as well as various “patches” sewn on. A stuffed decoration, in the shape of a Christmas tree is draped over the horizontal pole. Ornamental straw hands hang from the ends of both poles. According to the importer, the item will sold in retail stores “for Christmas merchandise” and is intended for “the Christmas Season.” ISSUE: Whether the “Scarecrow Snowman Lawn Ornament” is classified as a festive article of heading 9505, HTSUS. 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 HTSUS headings under consideration are as follows: 6307 [o]ther made up articles, including dress patterns 9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof Note 1(t) to Section XI, of which Chapter 63 is a part, states that: “[t]his section does not cover: (t) [a]rticles of Chapter 95 (for example, toys, games, sports requisites and nets).” Therefore, if the snowman scarecrow is described by heading 9505, HTSUS, it is classifiable there by operation of Note 1(t) to Section XI. In Midwest of Cannon Falls, Inc. v. United States, Court, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUS, as a “festive article” when the article, as a whole: 1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and 3. Is associated with or used on a particular holiday. Based on a review of the Midwest articles, Customs is of the opinion that the court has included within the scope of the class “festive articles” decorative household articles which are representations of an accepted symbol for a recognized holiday and utilitarian/functional articles if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 2/3, dated January 21, 1998. Additionally, the Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum ). Therefore, for those articles involving holidays, and symbols not specifically recognized in Midwest or the January 21, 1998 Customs Bulletin, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article is of a class or kind of good known as "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. The scarecrow snowman lawn ornament has no precious or semi-precious stones, metals or metal clad with precious metal. It functions primarily as a lawn decoration but the importer has provided no evidence which indicates that it is used in celebration of or for entertainment on a holiday, or that it is associated with or used on a particular holiday. Insofar as the general criteria set forth in Carborundum are concerned, as a whole, the general physical characteristics of the article indicate use throughout the winter season, and not association with any particular holiday. The importer has provided no Carborundum evidence which would indicate that the article is sold for a limited amount of time prior to a particular holiday, that the article will be sold in a venue associated with festive articles, or that the ultimate purchaser expects to use the article in the celebration of or for entertainment on an accepted holiday. Accordingly, we cannot conclude that the scarecrow snowman lawn ornament belongs to the class or kind “festive articles.” As such, it is not classifiable in heading 9505, HTSUS. The scarecrow snowman lawn ornament is classifiable in heading 6307, HTSUS. HOLDING: The scarecrow snowman lawn ornament is classifiable in subheading 6307.90.9989, HTSUS, which provides for, [o]ther made up articles, including dress patterns: [o]ther: [o]ther: [o]ther:[o]ther; [o]ther. Sincerely, John Durant, Director Commercial Rulings Division