CLA 2 RR:CR:GC 962447 JRS
James F. O’Hara, Esq.
Stein Shostak Shostak & O’Hara
515 S. Figueroa St., Suite 1200
Los Angeles, CA 90071-3329
RE: "Disneyland" Toppers; Decorative overcaps; Not Other Toys of Heading 9503; Ornamental Articles of Plastics of Heading 3926; Revocation of NY C86949; HQ 961840
Dear Mr. O’Hara:
This is in reference to your December 16, 1998, letter on behalf of Strottman International, Inc., requesting reconsideration of New York Ruling Letter (NY) C86949 dated April 29, 1998, issued by the Customs National Commodity Specialist Division in New York, concerning the classification of a “Disney Tomorrowland” topper under subheading 3923.50.00, of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for "stoppers, lids, caps and other closures, of plastics." You also request a ruling on a "Disney Castle" topper which you assert is the same in all material respects (construction, size, shape and purpose) as the "Disney Tomorrowland" topper ruled on in NY C86949. Samples of both toppers were submitted for our review along with the plastic beverage cup and screw-on lid to which they are attached after importation. We have reconsidered NY C86949 and now believe that it is incorrect. This ruling sets forth the correct classification and the analysis therefor. A notice of proposed revocation of New York Ruling Letter (NY) C86949, was published in the Customs Bulletin on July 7, 1999, Vol. 33, No. 27. No comments were received.
FACTS:
The merchandise at issue, manufactured in China, is decorative toppers for placing over a plastic lid containing a hole for a straw and beverage cup. The plastic cup, lid, and straw are of United States origin. The "Disney Tomorrowland" topper is made out of semi-pliable hard vinyl plastic molded into the fanciful form displaying some of the primary features of the Tomorrowland portion of Disney’s Magic Kingdom amusement park. It is painted with bright colors of gold, copper, silver and blue. This topper is approximately 4 inches in its outside diameter at its base (interior diameter is approximately 3½ inches where it fits over the lid portion of the beverage cup) and approximately 4½ inches at its greatest height. The form is essentially hollow and cylindrical in shape at its base. It depicts two spaceships each carrying two passengers, and having long, silver painted contrails, three varying sized planets encircled by rings, and the trademark logo of Tomorrowland, a red "T," that appears in front of a gold colored circular object in addition to other futuristic objects. A hollow tubular opening is located off center which can accommodate a drinking straw.
The "Disneyland Castle" topper is a decorative, brightly-colored painted mold, made of a semi-pliable hard vinyl plastic, in the shape of the Disney Castle found in Fantasyland that is surrounded by 3-dimensional heads of "Mickey Mouse," "Minnie Mouse," and "Pluto." The article is essentially hollow and its base is cylindrical in shape. It is approximately 4 inches in its outside diameter at its base (interior diameter is approximately 3½ inches where it fits over the lid portion of the beverage cup) and approximately 6 inches at its greatest height. The shape of the castle’s cylindrical turret is hollow which creates an opening to accommodate a drinking straw.
The two decorative toppers are part of a Disney promotion to celebrate the modernization of Disneyland’s Tomorrowland. You state that these items are designed to be sold to visitors at the Disney theme parks with beverages as a promotional souvenir item. The articles are to be used as a decorative cover for the actual screw-on lids and beverage cups that soft drinks are sold in at the park. Both toppers have a smooth base and are not threaded like the flat plastic lid which is designed to screw on the top of a beverage container.
ISSUE:
Whether the "Disneyland Toppers" are classified within heading 3923, as lids of plastics; within heading 3926, as other ornamental articles of plastics; or within heading 9503, as other toys.
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 the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
The HTSUS headings under consideration are as follows:
3923 [a]rticles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics.
3923.50 [s]toppers, lids, caps and other closures.
* * * * * *
3926 [o]ther articles of plastics and articles of other materials of headings 3901 to 3914.
3926.40 [s]tatuettes and other ornamental articles
* * * * * *
9503 [o]ther toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.
9503.90.0045 [o]ther, [o]ther toys and models.
In NY C86949, Customs found that the Disneyland Topper was not designed to be a toy that amuses, noting that the product was intended as a promotional/souvenir item, and concluded it was "a fully functional beverage cup lid" classified under subheading 3923.50.00, HTSUS. You claim that classification as toys under heading 9503, HTSUS, is proper because both toppers are not functional beverage cup lids.
The ENs to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS. Customs defines principal use as that use which exceeds each other single use of the article.
A close examination of the toppers leads to the conclusion that they are not designed for amusement. The articles function minimally to attract the user to drink the beverage through the straw protruding from the opening in either topper. It is not only that there is some functionality of the article which deprives it of a potential toy classification. Rather, it is that there is no manipulative play value associated with either the Disney Castle or the Disney Tomorrowland toppers. The only "amusing" aspect to one of them is that the Disney Castle topper presents well-known Disney cartoon characters. The heads of the cartoon characters attached to the Disney Castle do not impart the article with inherent play value. The toppers are interesting to look at due to their decorativeness in detail, color and design. The articles would have their longest usefulness, not on top of a beverage container at a theme park, but rather placed for display on a shelf or a desk in plain view as a souvenir of the visit to the theme park. It is our conclusion that the toppers will not be played with because they are principally meant for display and are promotional items or collectibles that are primarily decorative. Because the toppers are not designed to be played with, they are not principally designed to amuse and, therefore, not toys under subheading 9503.90.00, HTSUS. As such, the toppers must be classified in another provision.
The classification of the Disney Tomorrowland topper as a lid in heading 3923, HTSUS, is erroneous. A review of the physical characteristics of the topper reveals that it cannot function as a lid. The diameter of the topper is larger than the diameter of the cup, and the topper has no threaded feature which would permit it to be screwed on to the cup. If a topper were to be so used in place of the actual flat screw-on plastic lid, it would not fit securely on to the cup and would not prevent any liquid in the cup from leaking out due to the smoothness of its base. Thus, the topper can only be used with the screw-on cup lid in place on the beverage cup, and in that configuration the topper does not function as a lid or seal, but as a decorative overcap or topper.
Without the decorative Disney topper, the specially shaped Disneyland beverage container, which consists of a 8¾ inch tall plastic cup with a picturesque colored decal of the various parts of the theme park adhered to it (i.e., Frontierland, Space mountain, Splash mountain, Fantasyland, etc.) and the screw-on lid is a complete article. Although the toppers are sized for the particular cups with which they will be sold, the toppers do not have to be used to have a fully functioning Disnelyland beverage container. The Disneyland beverage cup and lid are complete and fully capable of holding and dispensing a beverage with a straw without the use of a decorative topper.
Inasmuch as the topper cannot function as a lid for the particular Disneyland cup due to its design (i.e., no threaded base), it is clear that the topper is intended to form a decorative topper or overcap for the actual lid of the cup. Thus, the terms of heading 3923 do not describe the topper, and classification under subheading 3923.50.00, HTSUS, is inappropriate.
Heading 3926, HTSUS, as the residual provision for plastics, could describe most articles of plastics not elsewhere specified or included. Since the topper is not described by the toys provision of heading 9503 and is not described by heading 3923, it falls by default into heading 3926. As stated, the toppers are promotional items or collectibles that are decorative and meant for display. The holes in the toppers for straws are unobtrusive in their placement and fit well in the overall design. The primary purpose of the Disneyland toppers is not to complete the design of the Disneyland beverage container, but to serve as a promotional or souvenir item to take home at the conclusion of the trip and set out for display. The toppers are decorative plastic articles that could be offered for sale apart from the use as an adjunct to the Disneyland beverage container. As such, the Disney toppers are provided for at the subheading level in 3926.40 as an ornamental article of plastic rather than at the subheading level of 3926.90.98 as other articles of plastic, other.
We find that the instant toppers are provided for under subheading 3926.40.00, HTSUS, as "[o]ther articles of plastic...[s]tatuettes and other ornamental articles." See HQ 961840, dated May 7, 1999, for a similar ruling.
HOLDING:
The Disneyland Toppers are classifiable under subheading 3926.40.00, HTSUS, as "[o]ther articles of plastics...[s]tatuettes and other ornamental articles."
EFFECT ON OTHER RULINGS:
NY C86949 dated April 29, 1998, is REVOKED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director,
Commercial Rulings Division