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HQ 961335

April 15, 1998

CLA-2 RR:CR:GC 961335 JGB


TARIFF NO.: 9507.90.8000

Ms. Sandi Siegel
M.E. Dey & Co., Inc.
5007 S. Howell Avenue
Milwaukee, WI 53207

RE: Painted plastic birds used as lawn ornaments and hunting decoys; NY A87030 Modified

Dear Ms. Siegel:

This is in reference to New York Ruling Letter (NY) A87030 issued to you on September 18, 1996, on behalf of Carry-Lite Inc. regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of plastic lawn ornaments from Italy. We have reviewed this ruling in light of the information provided in the letter sent by your firm, dated November 21, 1996, and have determined that Customs erred in NY A87030 by classifying all of the articles as other articles of plastics in subheading 3926.40.0000, HTSUSA.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), on March 4, 1998, Customs published a notice in the Customs Bulletin, Vol. 32, No. 9, proposing to modify New York Ruling Letter (NY)A87030, issued September 18, 1996, pertaining to the classification of plastic lawn ornaments and inviting comments on the correctness of the proposed modification. No comments were received in response to this notice.


The initial ruling identified eight articles depicted in a submitted brochure which were said to be used as garden ornaments to simulate wildlife. These items included: item #1750, Flamingo; item #591, Swan; item #5500, DXL Canada Goose; item #6752, Peregrin Falcon; item #6052, Great Horned Owl; item #590, Canada Goose; item #1500, Heron, and item #9885, Pheasant. We note that four of the items are also included in the Carry-Lite/Sport Plast Hunting Decoys catalog issued by your client, and that those articles appear to be designed and principally used as hunting decoys. As the letter from your firm indicates, those articles are as follows: item #6052, Great Horned Owl; item #1500, Heron; item #590, Canada Goose and item #5500, DLX Canada Goose.


Whether articles which by their design and construction appear to be principally used as hunting decoys, but which are also marketed and sold as lawn ornaments, are classified in heading 9507, HTSUSA, as decoy "birds" or as other articles of plastics in heading 3926, HTSUSA.


Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

Heading 9507 provides for "Fishing rods,...decoy birds'(other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof." This heading by its terms is governed by use, that is, articles
classified therein must be used for fishing, hunting, shooting, or as decoys.

Use provisions are governed by the Additional U.S. Rule of Interpretation 1(a) which states that: "1. In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind, to which the imported goods belong, and the controlling use is the principal use." Principal use is that use which exceeds any other single use of the article.

Additional U.S. Rule 1(a) requires an analysis of the use of the product to arrive at the correct classification. Any product may have a variety of uses, but the rules of tariff classification require that the product be classified according to that use that exceeds all other single uses of goods of that class or kind. With regard to the decoys/lawn ornaments in this case, the products appear to possess features that adapt them for use as hunting decoys, namely, non-glare paint, flat bottoms, leaded or weighted keel for stability and ballast, or hooks, a stake, hangers, chain and anchors, or other anchoring system to permit effective decoy use. These characteristics indicate that the products fit within a class of goods used as hunting decoys. Moreover, there appear to be no characteristics inconsistent with their use as decoys.

Heading 3926 provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914." This provision could describe the product, if there were no heading for decoy "birds" and similar hunting or shooting equipment. However, this residual plastics provision cannot take precedence over a specific use provision.

Your client may be augmenting the sales of its decoys by advertising and selling them as realistic lawn ornaments and this use may be financially beneficial to him. However, at least four of the articles are, by their construction and characteristics, within the class of goods principally used as hunting decoys and must be classified accordingly. The other birds covered by NY A87030, namely, the Flamingo (#1750), the Swan (#591), the Peregrin Falcon (#6752), and the Pheasant (#9885) do not fall into the class of decoy birds, because such birds are not used as decoys. They remain classified in subheading 3926.40.0000, HTSUSA, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles."


Item #5500, DXL Canada Goose; item #6052, Great Horned Owl; item #590, Canada Goose; and item #1500, Heron are classified in subheading 9507.90.8000, HTSUSA, the provision for "Fishing rods,...decoy birds'(other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof: Other: Other, including parts and accessories: Other, including parts and accessories" dutiable at the column one general rate of 9 percent ad valorem. NY A87030 is modified accordingly.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10 (c)(1)).


John Durant,
Commercial Rulings

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