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HQ 084240


July 18, 1989

CLA-2 CO:R:C:G 084240 SS; NY 838569

CATEGORY: CLASSIFICATION

TARIFF NO: 9505

Mr. Marc S. Greenberg
American Shipping Company
600 Sylvan Avenue
P.O. Box 1486
Englewood Cliffs, NJ 07632

RE: Classification of Animated Display Bears

Dear Mr. Greenberg:

This is in response to your letter dated February 10, 1989, on behalf of Electro Plastics Inc., requesting a tariff classification of animated display figures from China under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The items in issue are animated and /or illuminated display figures of bears dressed in Christmas attire. They are designated as Style numbers SB-2605- 26" Santa Bear in White, SB-2610- 26" Santa Bear in Brown, SB-2615- 26" Winter Bear in White, SB-2620- 26" Winter Bear in Browm, SB-2625- 26" Bed Time Bear in White, and SB-2630- 26 Bed Time Bear in Brown. Each figure is permanently attached to a display stand which allows the figure to remain in a vertical position. Additionally, each display figure incorporates an electric motor and the necessary mechanical components which enables the figure to move its head and arms in a predetermined pattern. This movement is activated by an on/off switch on the display base. Also, some figures include an illumination element such as an electric candle.

The figures are composed mainly of textile material which imparts the characteristic appearance of stuffed bears. They are also dressed in appropriate textile outfits and /or accessories celebrating the Christmas season.

ISSUE:

Whether the items in issue are properly classifiable under HTSUS heading 9618 which provides for animated displays, heading 9503 which provides for other toys, heading 8543, which provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere, or 9505 as festive, carnival or other entertainment articles.

LAW AND ANALYSIS:

Under the HTSUS, tariff classification is determined according to the General Rules of Interpretative (GRI's). Under GRI 1, the primary consideration in the classification of goods is the terms of the heading itself which must be read in conjunction with the relative notes.

In the instant case, the items under consideration are animated and illuminated figures of bears dressed in Christmas attire. Heading 9618 provides for tailors' dummies and other lay figures; automata and other animated displays used for shop window dressing. The Explanatory Notes for heading 96.18, which is the official interpretation of the tariff at the international level, provide in pertinent part:

(3) Animated and other displays used for shop window dressing.

These range from animated representations of humans or animals to numerous other automatically operating appliances of a kind used for displaying merchandise or for publicity purposes. They may be made of any material and are generally electrically or mechanically operated. Though frequently objects of curiosity in themselves, these articles are mainly intended to serve as novel methods of attracting attention to displays of goods or to particular articles exhibited in shop windows.***

Although the articles under consideration may sometimes be used for shop window dressing, the type of merchandising indicates that these articles are sold at retail to individual consumers for use as holiday and festive decorations. Also, based on the information available, these articles are not designed for the long hours of operation as required for shop displays. In fact, many of the packaging boxes clearly state that the use of these figures should be limited to three to five hours at a time.

Heading 9618 is a use provision. The additional U.S. Rules of Interpretation provide in pertinent part that "when classification is controlled by use (other than actual use) the principal use controls". Since the principal use for these articles is consumer use and not shop window dressing, these items are not classifiable under this heading.

Heading 9503 provides for other toys. The explanatory notes to this heading provides in pertinent part that this heading covers:

All toys not included in headings 95.01 and 95.02. Many of the toys of this heading are mechanically or electrically operated.

These include:

(1) All toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g. angels, robots, devils, monsters) including those for marionette shows.

While the items in issue are figures representing animals (in this case bears), and are electro-mechanically operated, these items by their very design cannot be used as toys even though they may have some amusement value. These bears are permanently mounted on display stands, and although when in operation might be amusing, their primary value is entertainment.

Accordingly, the merchandise under consideration is not properly classifiable under heading 9503, HTSUS.

Heading 9505, HTSUS, Festive, carnival or other articles, including magic tricks and practical jokes; parts and accessories thereof. The Explanatory Notes to this heading state in pertinent part:

This 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. .... Cake and other decorations (e.g. animals, flags) which are traditionally associated with a particular festival are classified here.

Heading 8543, HTSUS, provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere. The Explanatory Notes to this heading provide in pertinent part:

This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature ....

The electrical appliances and apparatus of this heading must have individual functions. The introductory provisions of Explanatory Notes 84.79 concerning machines and mechanical appliances having individual functions apply, mutatis mutandis, to the appliances and apparatus of this heading.

Most of the appliances of this heading consist of an assembly of electric goods or parts (valves... etc.) operating wholly electrically. However, the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.

Arguably, the items in issue can be described as electrical goods incorporating mechanical features, with such features subsidiary to their electrical function. However, these articles are also more specifically described in heading 9505, HTSUS, which provides for festive, carnival or other entertainment articles. Santa Claus is clearly a traditional Christmas festive figure, and the bear dressed to represent Santa Claus is ostensibly a Christmas festive article. Further, although the other bears in issue might not be described as traditional festive articles, nevertheless, they are designed, manufactured, and marketed as festive articles providing entertainment value for the holiday season.

The Explanatory Notes to heading 8543, HTSUS clearly state that this heading does not cover electrical appliances more specifically covered by a heading of any other Chapter of the Nomenclature. Accordingly, since the merchandise in issue is more specifically described in heading 9505, such merchandise is not properly classifiable under heading 8543, HTSUS, and further, is properly classifiable under heading 9505, HTSUS.

HOLDING:

The bears representing Santa Claus, are properly classifiable under subheading 9505.10.50, HTSUS.

The Winter Bears and Bed Time Bears are properly classifiable under subheading 9505.90.60, HTSUS.

Sincerely,

John Durant, Director

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