CLA-2 CO:R:C:F 954996 LPF
District Director
U.S. Customs Service
110 South 4th Street - Rm 154
Minneapolis, MN 55401
RE: Decision on application for further review of Protest No.
3501-93-100345, filed July 22, 1993; Teen Boy and Girl cake
decoration figures in heading 9502 as dolls; Not 3926
articles of plastics; Not 9505 festive, carnival or other
entertainment articles
Dear Sir:
This is a decision on a protest filed July 22, 1993 against
your decision in the classification of merchandise liquidated on
April 23, 1993.
FACTS:
The merchandise at issue, manufactured in China, consists of
items intended to be sold to the bakery industry as cake
decorations. However, the sample submitted of the two piece
assortments, each depicting a teen boy and girl listening to the
radio and dancing, respectively, (Items #60110 and #60111) reveals
that the figures are composed of polyvinyl chloride (PVC) and are
of sufficient quality to be retained by a child and subsequently
used for display and/or amusement. On March 29, 1994 we had the
opportunity to meet with Mr. Murphy, the President of DecoPac, and
counsel. This meeting, as well as counsel's submission of March
30, 1994, provided us with further detail regarding the condition
and packaging of the merchandise when imported and sold to the
bakeries.
It is our understanding that the two individually wrapped
figures, each in a clear, poly bag, are placed inside another
clear, poly bag which is heat sealed. The product is imported in
grosses (144 sets per package) pre-packaged as sets in food-grade
poly bags. Once imported, the gross shipments are packaged six to
a box for resale to DecoPac's customers. The articles remain
in the sealed poly bag when placed in the six unit, exterior box
which itself is designed to facilitate the sale and shipment of
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the sets. An instruction sheet for decorating the cake, as
required by DecoPac's license agreements, and a sheet with six peel
and stick warning labels, as required by the Consumer Product
Safety Commission, are included within the exterior box.
Once the box of six sets of the merchandise arrives at the
bakery, the baker will decorate and ice the cake consistent with
DecoPac's instructions, but, in most cases, will not position the
decorations on the cake. Rather, the retail consumer will purchase
a decorated cake in a domed box with the pvc cake decorations still
in the same food-grade poly bag attached to or enclosed with the
cake box. The sale of the decorated cake in this manner eliminates
the likelihood that the decorations will shift or tip in transit
and mar the iced cake prior to the birthday celebration.
The protestant entered the merchandise under subheading
9505.90.60, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as festive, carnival or other entertainment
articles, other, other at a duty rate of 3.1 percent ad valorem.
You maintain that the merchandise is classified under
subheading 9502.10.40, HTSUSA, as dolls representing only human
beings, other (than stuffed) at a duty rate of 12 percent ad
valorem.
The protestant submits that if the figures are not classified
in subheading 9505.90.60, HTSUSA, they are classified,
alternatively, in subheading 3926.40.00, HTSUSA, as other articles
of plastics, statuettes and other ornamental articles.
ISSUE:
Whether the figures are classified within heading 9505 as
festive, carnival or other entertainment articles; 9502 as dolls
representing only human beings; or 3926 as other articles of
plastics.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported 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
Explanatory Notes (ENs) to the Harmonized Commodity Description and
Coding System, which represent the official interpretation of the
tariff at the international level, facilitate classification under
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the HTSUS by offering guidance in understanding the scope of the
headings and GRIs.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The ENs to 9505 indicate 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....
The figures do not meet the criteria for festive articles,
because they are not traditionally associated or used with a
particular festival. Customs has maintained that, generally,
figurines and dolls are not traditionally associated or used with
a particular festival. They are not ejusdem generis with those
articles cited in the ENs to 9505 as exemplars of traditional,
festive articles. See Headquarters Ruling Letters (HRLs) 952821,
issued March 3, 1993, and 952981, issued March 18, 1993.
However, we note that EN (A)(1) to 9505 indicates that cake
decorations are classified within heading 9505. Based on the
information submitted, including an examination of the samples as
well as the catalog illustrating the products, we do not believe
that the merchandise qualifies as cake decorations provided for in
the EN. Cake decorations, in contrast to the subject articles,
generally are made of extremely cheap, non-durable material and are
disposed of once the cake is eaten. In contrast, these articles
although marketed as cake decorations, are unique insofar as they
are of sufficient quality to be retained by a child, perhaps for
play. In fact, DecoPac advertises and markets numerous articles
as cake decorations, including Barbie and troll dolls and plastic
picture frames, which do not fit the description of "cake
decorations." Accordingly, these figures are not classifiable
within heading 9505.
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An additional heading to be considered in this case is 9502
which provides for dolls representing human beings. The EN to 9502
state that "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 use in Punch
and Judy or marionette shows, or those of a caricature type...."
As the figures are of sufficient quality to be retained by a
child and be used for amusement and display, throughout the year,
as a doll, we disagree with the protestant's position that the
figures have no function or utility in non-celebratory occasions.
Accordingly, the figures are classifiable within heading 9502.
The protestant submits, alternatively, that the merchandise
is properly classified within heading 3926 as other articles of
plastics as opposed to dolls within heading 9502. In HRLs 088895,
issued March 22, 1993, 085164, issued October 18, 1990, and 082001,
issued February 13, 1990, Customs addressed the distinction between
figures classified as dolls and plastic statuettes. In those
decisions figures depicting Peanuts cartoon characters and
representing players from the National Basketball Association
(NBA), the National Football League (NFL), and Major League
Baseball (MLB) were classified within heading 9502 as dolls.
Customs maintained in those rulings that in accordance with
prior judicial decisions, the term "doll" was to be interpreted
broadly and that the classification of articles as dolls depends
on the various circumstances and factors in each individual case.
We reiterate that the ENs provide not only for amusing type dolls,
but also for decorative or collectable type dolls such as those at
issue. In HRL 085164, supra, Customs stated that although figures
may be depicted in a set pose and affixed to a base or a stand,
this does not change classification of such articles from dolls to
other articles of plastic. The subject figures are not
classifiable within heading 3926.
This position is consistent not only with the rulings
discussed above, but also with the following decisions where the
figures were classified as dolls or toys: HRL 953473, issued
September 15, 1993, Aladdin and Wizard figures; HRL 952981, issued
March 18, 1993, wooden boys and girls dressed in plaid; New York
Ruling Letter (NYRL) 841282, issued May 25, 1989, plastic railway
workers; NYRL 855794, issued September 24, 1990, plastic comic book
characters; and NYRL 833463, issued December 15, 1988, plastic
Ronald McDonald.
On the contrary, counsel notes that in NYRL 842873, issued
July 19, 1989, a plastic rabbit figure was classified within
heading 3926. In this regard, we reiterate that classification
depends on the various circumstances and factors in each
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individual case. It appears that the subject article in NYRL
842873 was not designed and used principally for amusement as a
toy, but instead resembled a plastic figurine or statuette.
The subject figures are classifiable, pursuant to GRI 1,
within heading 9502 as dolls.
HOLDING:
The figures depicting teen boys and girls are classified in
subheading 9502.10.4000, HTSUSA, as "Dolls representing only human
beings...: Dolls, whether or not dressed: Other: Not over 33 cm in
height." The applicable rate of duty is 12 percent ad valorem.
Because the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision with the Form
19 should be sent to the protestant.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of the
decision, the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS, and to the public via the Diskette
Subscription Service, Lexis, the Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division