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NY M80257

February 8, 2006

CLA-2-95:RR:NC:SP:225 M80257


TARIFF NO.: 9502.10.0060; 6307.90.9889

Mr. Joseph Stinson
Liss Global, Inc.
7746 Dungan Road
Philadelphia, PA 19111

RE: The tariff classification of a scarecrow assortment from China.

Dear Mr. Stinson:

In your letter dated January 29, 2006, you requested a tariff classification ruling.

You submitted a sample of a “31 Inch Nature Scarecrow, Pumpkin, Crow” assortment identified as assortment number 944627, which is being returned per your request. The assortment consists of three 31” full-bodied scarecrows mounted on bamboo poles that depict the faces of a human figure, a jack-o’-lantern and a crow, respectively. The bodies of the scarecrows are constructed primarily out of Styrofoam covered with textile material. The hair and hands of the scarecrows are formed out of cornhusks. All of the figures are adorned with a textile hat, and dressed in a plaid shirt and a pair of overalls. Each figure is affixed to a bamboo pole that may be inserted into the ground. The scarecrows will be marketed as a seasonal decoration.

  Dolls can be designed for the amusement of children, but they also can be intended for decorative purposes. Therefore, as the “Nature Scarecrow” depicts a human likeness (the farmer in the field) dressed in textile garments and is designed to serve as a decoration, it is classifiable within the doll provision. The “Crow Scarecrow” cannot be classified as a doll as it depicts a bird and not a human.

The applicable subheading for the “Nature Scarecrow” will be 9502.10.0060, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressedOther." The rate of duty will be Free.

The applicable subheading for the “Crow Scarecrow” will be 6307.90.9889, HTSUS, which provides for "Other made up articles, including dress patterns: Other: Other: Other: Other: Other." The rate of duty will be 7% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

We are unable to issue a ruling on the “Pumpkin Scarecrow” as the classification of the merchandise which is the subject of your request involves a consideration of whether the merchandise may be classifiable in Chapter 95 as “festive.”

On June 29, 2005, a proposal to limit the court decisions in Park B. Smith, Ltd. V. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), rehearing denied (Fed. Cir. March 16, 2004), was published in the Customs Bulletin. CBP will notify the public in the Customs Bulletin when the agency has completed its review of its position in light of comments received in response to this notice. In addition, there are currently pending several cases before the Court of International Trade involving the question of classification of merchandise as “festive” in Chapter 95 of the Harmonized Tariff Schedule of the United States.

Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal therefrom.

As such, CBP will not issue a classification ruling with regard to your merchandise at this time. The classification determination may be impacted by the agency’s position regarding the court decisions in Park B. Smith, supra. In addition, issuance of a classification ruling would be inconsistent with 19 C.F.R. §177.7(b), cited above.

The court cases currently pending in the Court of International Trade, which may preclude issuance of a ruling on the subject merchandise, include cases involving the classification of sweaters and blouses, textile and plastic bows, glassware, tableware and bakeware. See Michael Simons Designs, Inc. v. United States, Ct. No. 04-00537; Berwick Industries, Inc. v. United States, Ct. Nos. 98-12-03189, 96-01-00263, 99-01-000436, 99-03-00121, 99-03-00158, 99-06-00356, 98-09-02897, 97-05-00789, 97-06-00983, 97-08-01400, 96-12-0738, 96-05-01359, and 96-04-01197; Waterford Wedgwood USA, Inc. v. United States, Ct. Nos. 00-05-00215, 99-03-00133 and 99-11-00721; Cuthbertson Imports Inc. v. United States, Ct. No. 03-00846; and Wilton Industries, Inc. v. United States, Ct. Nos. 00-11-00528, 00-01-00218, 00-03-00014, 00-03-00015, 00-04-00193, 00-04-00194 and 00-04-00250.

If you wish, you may resubmit your request for a prospective ruling after CBP issues a final determination with regard to its proposal to limit Park B. Smith, supra. However, in keeping with an importer’s responsibility to exercise reasonable care, you may wish to check the status of pending court cases involving the issue of classification of merchandise as “festive articles” of heading 9505, HTSUS, and assess the possible impact on the classification of your merchandise. If you choose to resubmit your request for a ruling, CBP will consider at that time whether pending cases before the Court of International Trade or the Court of Appeals for the Federal Circuit preclude issuance of a ruling. The above referenced file is hereby administratively closed.

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 Wong at 646-733-3026.


Robert B. Swierupski

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