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NY F84400

April 4, 2000

CLA-2-95:RR:NC:SP:225 F84400


TARIFF NO.: 9505.90.4000; 6307.90.9989

Mr. Richard A. Rocco
Livingston International, Inc.
27215 Northline Road
Taylor, MI 48180

RE: The tariff classification of Halloween garland and an outdoor decoration from China

Dear Mr. Rocco:

In your letter dated March 8, 2000, received in this office on March 15, 2000, you requested a tariff classification ruling for Danson Décor, Inc.

Pictures of the articles were submitted with your inquiry. Item number H4392, decorative garland, is made up of a braided wicker rope with attached figures of witches, scarecrows, ghosts and pumpkins. The rope garlands measure 72” in length. They are intended for use in decorating the home during the fall season and/or at Halloween.

Item number H4384 is a full-figured crow mounted on a bamboo pole for insertion into the ground. The crow is constructed of textile fabric and appears to be stuffed with straw-like matter in similar fashion to a scarecrow. He features a large yellow beak; two eyes and wears a big straw hat on his head. The figure wears a burlap style shirt, overalls and a fringed scarf wrapped around his neck. You indicate that the crow measures 60” in height. The article is designed for use as an outdoor decoration during the fall season.

The classification of merchandise under the HTS is governed by the General Rules of Interpretation (GRI'S). GRI 1 of the HTS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...”

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), although not legally binding are the official interpretation of the tariff at the international level. They state, in pertinent part for 95.05:

"This heading covers:

(A)(1) Decorations such as festoons, garlands...Cake and other decorations which are traditionally associated with a particular festival are also classified here."

Accordingly, the decorative garland of item H4392 will be classified in the appropriate heading within 9505.

The crow decoration, item H4384, however, is not of the same class or kind of merchandise as that described in EN 95.05(A)(1). In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997), the court determined selected articles qualified as festive provided certain requirements were met. Those items ruled upon were representations of symbols, which were traditionally associated with a recognized holiday. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, 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.

Additionally, we must consider the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the 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. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

The subject crow, item H4384, is admittedly related to the fall or harvest season but it is not connected with any specific holiday as required by application of the Midwest criteria. The crow does not portray a symbol that is associated with any particular holiday. Further, you suggest the crow might be classified as a toy representing an animal in heading 9503.41 or 9503.49. Toys are defined as articles that are “designed for amusement purposes”. The crow cannot be “played” with by children or adults and is clearly designed for decorative purposes as evidenced by its construction.

In classifying the crow, we refer to GRI 3 which states, in pertinent part, the following: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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.

The crow is viewed as a composite good made up of various materials. We find that the textile fabric imparts the essential character of this product.

The applicable subheading for item H4392, festive garland, will be 9505.90.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles: confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof. The rate of duty will be free.

The applicable subheading for item number H4384, crow decoration, will be 6307.90.9989, Harmonized Tariff Schedule of the United States (HTS), which provides for other made up articles...Other. The rate of duty will be 7 percent ad valorem.

With regards to item H3455, “crow head on a stick,” we are unable to offer a classification ruling without a physical sample and a breakout of the component materials, by value and weight, for the item. Although pictures sometimes adequately represent certain commodities, this is not true for the instant product.

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

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-637-7028.


Robert B. Swierupski

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