CLA-2 RR:TC:FC 957804K
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607
RE: Application For Further Review of Protest No. 3901-93-101757;
Plastic Novelty Figures Designed For Cap or Lid Closures
Dear Port Director:
The following is our response to the referral by your
office, dated March 24, 1995, of the request for further review
of the above-referenced protest.
FACTS:
The protestant states that all of the fifteen consumption
entries covering the imported plastic articles were liquidated on
May 21, 1993, under the provision for other toys (except models),
not having a spring mechanism, in subheading 9503.90.6000,
Harmonized Tariff Schedule of the Unites States (HTSUS) (1992),
with duty at the 1992 general rate of 6.8 percent ad valorem. A
timely protest under 19 U.S.C. 1514 was received on August 19,
1993. For the articles listed in the protest as "Christmas", the
protestant requested reliquidation of the entries under the
provision for other Christmas ornaments in subheading
9505.10.2500, HTSUS, with duty at the 1992 general rate of 5
percent ad valorem but free of duty as Christmas ornaments other
than ornaments of glass or wood, in subheading 9902.95.05, HTSUS.
In the alternative, the protestant requested that the entries
should be reliquidated for the articles listed as "Christmas"
under the provision for other festive articles in subheading
9505.90.6000, with duty at the 1992 general rate of 3.1 percent
ad valorem and free of duty if valued not over 5 cents per unit
as provided for, in subheading 9902.71.13, HTSUS. For the
articles listed in the protest as "Halloween", "Valentines", and
"Easter", the protestant requested reliquidation of the entries
covering these articles, under the provisions for other festive
articles, in subheadings 9505.90.6000, with duty at the 1992
general rate of 3.1 percent ad valorem and free of duty if valued
not over 5 cents per unit as provided for in subheading
9902.71.13, HTSUS. Also in the alternative, the protestant
suggests that all of the articles are classified as other plastic
stoppers, lids, caps, and other closures, in subheading
3923.50.0000, HTSUS, with duty at the 1992 general rate of 5.3
percent ad valorem.
Approximately 18 samples were submitted with the protest.
The height of the samples range from 2« to 4« inches, and
approximately 2 inches in diameter. The articles are novelty
figures representing a variety of different creatures such as a
ghost, a scarecrow, a snowman, a Dracula and a rabbit. Some
depict a pumpkin or M&M candy figures. Some of the articles have
a string attached and some do not. All of the figures share the
common attribute of either a threaded molded base or a cap
designed so that they can fit snugly into a container of some
sort as a cap or stopper. On some of the articles, the threaded
molded section can be removed from the figures. Presumedly, the
articles may be used as closures of containers in the packaging
of candy or other merchandise and may also be used as toys.
ISSUE:
The issue is whether the plastic articles described above
are classifiable as other Christmas ornaments and other festive
articles, in heading 9505, HTSUS.
LAW AND ANALYSIS:
The protestant claims that the articles are classified in
heading 9505 which provides for festive, carnival or other
entertainment articles, including magic tricks and practical joke
articles; parts and accessories thereof. Subheading
9505.10.2500, HTSUS (1992), provides for Christmas ornaments
other than of glass or wood. Some of the articles have a hole
with a string attached which indicates that they may be used as
Christmas tree ornaments. Subheading 9505.90.6000, HTSUS (1992),
provides for other festive articles. However, the articles are
designed with either a molded base or a cap so that they can be
attached to other articles such as containers or other parts of
toys. Normally, Christmas ornaments and festive articles are not
utilitarian articles designed as closures for the conveyance or
packing of goods.
Heading 3923, HTSUS, (1992) provides for articles for the
conveyance or packing of goods, of plastics; stoppers, lids, caps
and other closures, of plastics. Subheading 3923.50.0000, HTSUS,
provides for plastic stoppers, lids, caps and other closures.
The design of the articles with either a molded base or a cap
indicates that they may be used as closures for containers for
the conveyance or packing of goods.
Heading 9502, HTSUS (1992) covers dolls representing only
human beings and parts and accessories thereof and subheading
9502.10.4000, HTSUS (1992), provides for other dolls,
representing only human beings and parts and accessories thereof,
whether or not dressed, not stuffed, and not over 33 cm in
height. Heading 9503, HTSUS (1992), covers other toys...parts
and accessories thereof and subheading 9503.49.0020, HTSUS,
provides for other toys representing animals or non-human
creatures, not stuffed, and not having a spring mechanism. Some
of the articles may be classified as dolls and the rest of the
articles may be classified as toys.
It appears that the imported articles may have a dual
purpose, for use as closures and as toys. Customs Headquarters
Ruling Letter (HRL) dated April 26, 1993 (951309) concerned
similar facts involving M & M novelty figures designed as lids
for closures for containers containing candy, a utilitarian use,
and as toys. In that case, Ideal Toy Corp. v. United States, 78
Cust. Ct. 28, C.D. 4688 (1977), was cited in which the court
stated that "[W]hen amusement and utility become locked in
controversy, the question becomes one of determining whether the
amusement is incidental to the utilitarian purpose, or the
utility purposes incidental to the amusement." We noted in HRL
951309, that the merchandise had the appearance and play value of
any toy, that it could be used for amusement without being used
as a closure or stopper, that the primary value of the item is
its play value, and that the utilitarian aspect of the
merchandise is temporary and incidental to the amusement factor.
We concluded that the articles were classified as toys. We come
to the same conclusion in this protest.
HOLDING:
The plastic novelty figures described above are classified
as follows under the 1992 HTSUS.
1. The figures that are full-figured representations of
animals or creatures, are classified as other toys representing
animals or non-human creatures and parts and accessories thereof,
not stuffed, not having a spring mechanism, in subheading
9503.49.0020, HTSUS.
2. The figures that possess less than a full-figured
anatomical configuration, such as the pumpkin face, the yellow
rabbit and the light brown scarecrow, are classified as other
toys (except models), not having a spring mechanism, in
subheading 9503.90.6000, HTSUS.
3. The figure depicting Dracula is considered a doll because
it is a physical representation of a human being and is
classified as other dolls representing only human beings and
parts and accessories thereof, not stuffed, not over 33 cm in
height, in subheading 9502.10.4000, HTSUS.
You are directed to deny the protest in full in accordance
with this decision.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division