CLA-2 CO:R:C:G: 085898 DPS
Beth C. Brotman, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, N.Y. 10004
RE: Reconsideration of H.Q. Ruling 084335; animated
choir boy display figure; festive article; not doll
Dear Ms. Brotman:
This is in response to your letter of October 27, 1989,
on behalf of McCrory Stores, requesting reconsideration of
Headquarters Ruling Letter (HRL) 084335, dated August 15,
1989, concerning the classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), of
an animated choir boy display figure which is marketed and
sold as a decorative article for Christmas festivities. A
sample of the subject merchandise was submitted with your
original ruling request.
FACTS:
The article at issue is an animated display figure
depicting a choir boy. It is approximately 24 inches in
height and is mounted on a wooden platform. Its body is
comprised primarily of plastic, with detailed plastic face
and hands, and hair of textile material on its head. The
figure is wearing a red cap, red pants, a jacket and a plaid
scarf, all of which are composed of textile material. An
electric candle, consisting of a light bulb on a plastic
cylindrical holder, is being held in the figure's right hand.
Inside the figure's torso is a motor, which, when plugged
into an electrical socket and switched on, causes the candle
to light up and the figure's head and arm to move from side
to side.
The importer states that the figure is intended to be
displayed in the home during the Christmas season, and that
it purchases the figures to display and sell in its
"Decorations/Trim-a-Tree Department." The importer further
states that the subject article is advertised and sold as a
Christmas decoration item, along with other such items
including Christmas lights, trees and wreaths. Information
reflecting the manner in which the subject merchandise is
displayed for retail sale was submitted by the importer to
demonstrate that the merchandise is sold along with a variety
of Christmas decorative articles.
ISSUE:
Whether the subject choir boy figure is properly
classifiable as a doll under Heading 9502, HTSUSA, a festive
article under Heading 9505, HTSUSA, or as an
automaton/animated display figure under Heading 9618, HTSUSA.
LAW & ANALYSIS:
The General Rules of Interpretation (GRI's) set forth
the legal framework in which merchandise is to be classified
under the HTSUSA. GRI 1 requires that classification be
determined first according to the terms of the headings of
the tariff and any relative section or chapter notes and,
unless otherwise required, according to the remaining GRI's
taken in order.
The Headings at issue in this case are:
(a) 9502, HTSUSA, Dolls representing only
human beings and parts and accessories
thereof:...
(b) 9505, HTSUSA, Festive, carnival or other
entertainment articles, including magic tricks
and practical joke articles; parts and
accessories thereof:...
(c) 9618, HTSUSA, Tailors' dummies and other
mannequins; automatons and other animated
displays used for shop window dressing...
HRL 084335, which classified the subject merchandise as a
doll under Heading 9502, followed another Headquarters
Ruling, HRL 083835, dated June 9, 1989, which considered
classification of similar figures in each of the headings
listed above. HRL 083835 concluded, pursuant to GRI 1, that
animated and illuminated figures representing human
characters such as Mrs. Claus and a Christmas caroler were
classifiable under subheading 9502.10.8000, HTSUSA, as other
dolls. It also classified a similar figure, which depicts an
angel, under Heading 9505, HTSUSA, because the angel was
stated to symbolize the Christmas season.
When reconsidering the rulings described above, it is
necessary to examine the language of the relevant headings
and the Explanatory Notes thereto, in conjunction with the
GRI's. The Explanatory Notes to the HTSUSA, which constitute
the official interpretation of the tariff at the
international level, provide further guidance in determining
the scope of each provision.
With regard to Heading 9618, we rule out classification
in that provision because the language of the heading itself,
as well as the Explanatory Notes thereto, limit the use of
items classified therein to the display of goods or
particular articles exhibited in shop windows. The subject
24 inch tall animated display figures are sold to consumers
for display in the home during a particular holiday. They
are not equipped for heavy-duty continual use like a shop
window mannequin or robot/automaton. Accordingly, they are
not classifiable in Heading 9618.
Next, we compare headings 9502 and 9505, HTSUSA.
Heading 9502, the doll provision, is considered an eo nomine
(i.e., "by name") provision. With regard to Heading 9502,
HTSUSA, the provision for dolls representing only human
beings, Explanatory Note (EN) 95.02, at p. 1586 states:
The heading includes not only dolls designed
for the amusement of children, but also dolls
intended for decorative purposes (e.g.,
boudoir dolls, mascot dolls), or for the use
in Punch and Judy or marionette shows, or
those of a caricature type.
Dolls are usually made of rubber, plastics,
textile materials, wax, ceramics, wood
paperboard, papier mache or combinations of
these materials. They may be jointed and
contain mechanisms which permit limb, head or
eye movements as well as reproductions of the
human voice, etc. They may also be dressed.
The General Explanatory Notes to Chapter 95, at p.1585,
which explain the general scope of the chapter, provide:
This Chapter covers toys of all kinds whether
designed for the amusement of children or
adults....
A close reading of the Explanatory notes indicates that
the subject merchandise is not excluded from Heading 9502.
Pursuant to GRI 1, the display figures appear to be covered
under Heading 9502, HTSUSA, as dolls. However, the question
remains as to whether another provision more specifically
covers the subject Christmas animated display figures in
light of their intended use as Christmas decorative articles.
Heading 9505, HTSUSA, covers festive articles.
Explanatory Note 95.05, at p. 1590, states 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.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs.
For the most part, the items described above which fall under
Heading 9505, HTSUSA, tend to have no function other than
decoration.
It is Customs position that an article which, by its
shape, design and ornamentation is appropriately used in
connection with a recognized festive holiday, is an article
that falls under Heading 9505, HTSUSA. The subject choir boy
figure is marketed, sold and used as a Christmas display
figure. It is not intended to be manipulated or played with,
nor is it intended to be used on a year round basis. Rather,
it is to be used to decorate the home during the Christmas
season. As such, it is classifiable under Heading 9505.
GRI 3(a) applies when determining which of two
provisions is most appropriate. It states, in pertinent
part:
3. 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:
(a) The heading which provides the most
specific description shall be preferred to
headings providing a more general
description.
Here, we have the difficult task of determining which
provision, between 9502, an eo nomine provision, and 9505, a
use provision, is considered more specific. In general, the
heading providing the most specific description is that which
has more difficult requirements to satisfy. Moreover, absent
legislative intent to the contrary, when an article is
classifiable under both a use and a name provision, then
rules of construction applied in cases involving the Tariff
Schedules of the United States (TSUS) hold that the use
provision is generally more specific. See United States v.
Siemens America, Inc., 653 F.2d 471, 477 (C.C.P.A. 1981),
cert. denied, 454 U.S. 1150 (1982).
In applying the above rule of construction to the
competing headings at issue in this case, it is our view that
the festive article use provision is more specific than the
eo nominee doll provision. Therefore, the subject choir boy
display figure is properly classifiable under Heading 9505,
as a festive article for Christmas festivities.
Having determined that the merchandise is classifiable
under Heading 9505, HTSUSA, a decision as to the appropriate
subheading is necessary. Subheading 9505.10 provides for
articles for Christmas festivities. Those articles are
further broken down at the eight digit level into Christmas
ornaments, nativity scenes and other. We rule out nativity
scenes because the subject choir boy figure does not depict
such a character or scene, and Christmas ornaments because
Customs has determined that for tariff purposes, to qualify
as a Christmas ornament the item must be marketed and sold as
a Christmas tree ornament, that there be some method,
generally a loop attached to the top to secure or hang the
item on a tree, and that the item is not too big or too heavy
to be hung or attached to a tree. Accordingly, the subject
choirboy display figure falls into the "Other" provision.
The final issue to determine is whether the figure is
essentially "of plastics" and classifiable under subheading
9505.10.4000, HTSUSA, which provides for Christmas articles
of plastics, or whether the figure is not essentially "of
plastics," and therefore classifiable under subheading
9505.10.5000, HTSUSA, the provision for Christmas articles
other than of plastics. Although the form of the figure is
comprised of plastic, textile and electromechanical
components are present to the extent that the item cannot be
considered essentially of plastics. Therefore, it is
classifiable under subheading 9505.10.5000, HTSUSA, which
provides for Christmas articles, other, other.
HOLDING:
Pursuant to Section 177.9(d) of the Customs Regulations
(19 CFR 177.9(d)), HRL 084335, which classified the subject
animated choir boy display figure as a doll under subheading
9502.10.8000, HTSUSA, is hereby modified. For the reasons
set forth above, the subject animated display figure is
classifiable as a festive article for Christmas, comprised of
materials other than plastics, under subheading 9505.10.5000,
HTSUSA. Articles classified under this provision are subject
to a duty rate of 5.8 percent ad valorem. HRL 084335 is
modified accordingly.
This modification is effective immediately. A copy of
this ruling letter should be attached to the entry documents
filed at the time this type of merchandise is imported.
Sincerely,
John Durant, Director
Commercial Rulings Division