CLA-2 CO:R:C:F 955528 GGD
District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-93-100358, filed November 1, 1993, concerning the
classification of an article identified as a small flying
witch with broom.
Dear Sir:
This is a decision on a protest filed on November 1, 1993,
against your decision in the classification and liquidation of an
entry in November 1993, of small flying witches with brooms.
FACTS:
You classified the item under subheading 9502.10.2000,
HTSUSA, the provision for "Dolls representing only human beings
and parts and accessories thereof: Dolls, whether or not dressed:
Stuffed," with an applicable duty rate of 12 percent ad valorem.
Protestant claims that the item should be classified under
subheading 9505.90.6090, HTSUSA, as a festive article. The
applicable duty rate for the claimed provision is 3.1 percent ad
valorem.
The small flying witch with broom, identified by item no.
ARP 205, is comprised essentially of stiff paper and contains no
stuffing materials. The witch's "hair" and the broom's bristles
are sisal or hemp and the broomstick is wood. The witch measures
approximately eight inches in height, with the broom measuring
approximately sixteen inches in length. There is a string for
suspending the article.
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ISSUE:
Whether the item is classified in heading 9505, HTSUSA, as a
festive article; or in heading 9502, HTSUSA, as a doll.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system is such that virtually all 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Heading 9505, HTSUSA, provides for, among other items,
festive, carnival or other entertainment articles. The EN to
heading 9505 states, in part, 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.
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
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2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
We consider the subject item to be made of non-durable
material (since it is not designed for sustained wear and tear,
nor is it purchased because of its extreme worth or value). The
article also functions primarily as a decoration.
Upon examination of the third criterion, however, we find
that witches are not traditionally associated or used with a
particular festival. They are not the same types of articles
cited in the ENs to 9505, as examples of traditional, festive
articles, nor do they particularly relate to Halloween. Witches
are often the subject of mythology, history, plays, movies, and
cartoons bearing no significance to a festival or holiday. In
light of the above, the item is not classified as a festive
article under heading 9505, HTSUSA, and must be classified
elsewhere.
The protestant cites certain Headquarters Ruling Letters
(HRLs) - each issued several years prior to the subject case - in
which a choir boy display figure and scarecrow figures were
classified in heading 9505, HTSUSA. While use of the HRLs to
support protestant's claim is understandable, the findings
contained therein no longer reflect Customs position regarding
the classification of festive articles. Appropriate action is
currently being taken to revoke or modify the rulings.
With respect to the small flying witch with broom, heading
9502, HTSUSA, provides for "Dolls representing only human beings
and parts and accessories thereof." The ENs to heading 9502
indicate that the heading includes not only dolls designed for
the amusement of children, but also dolls intended for decorative
purposes, or those of a caricature type. The ENs also
specifically mention materials comprising the subject witch,
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stating that dolls are usually made of rubber, plastics, textile
materials, wax, ceramics, wood, paperboard, paper mache or
combinations of these materials.
In HRL 952821, issued March 3, 1993, this office held that
figures of a witch and a vampire were classified not as festive
articles in heading 9505, HTSUSA, but as dolls in heading 9502.
We noted that, although the nose, chin, or teeth of such figures
might be bigger/longer than the usual human feature counterparts,
and although a figure might be widely recognized as a non-human
creature in popular culture, these embellishments and cultural
perceptions did not render the figures non-human creatures for
classification purposes. See HRL 950698, issued March 20, 1992.
The small flying witch with broom is thus classified as a doll in
subheading 9502.10.4000.
HOLDING:
The small flying witch with broom, item no. ARP 205, is
classified in subheading 9502.10.4000, HTSUSA, the provision for
"Dolls representing only human beings and parts and accessories
thereof: Dolls, whether or not dressed: Other: Not over 33 cm in
height." The applicable duty rate is 12 percent ad valorem.
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, the protest should be
denied in full. A copy of this decision should be attached to
the Form 19 to be returned 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