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HQ 084249


July 14, 1989

CLA-2 CO:R:C:G 084249 SS; NY 838568

CATEGORY: CLASSIFICATION

TARIFF NO: 9502.10.80, 9505.90.60

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

RE: Classification of Animated Display Figures

Dear Mr. Greenberg:

This is in response to your letter dated March 3, 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). The item numbers are as follows: SH-2115-24 Skeleton, SH-2105-24 Strawman, SH-2130-24 Witch, SH-2120-24 Ghost and SH-2110-24 Dracula.

FACTS:

The items in issue are animated and illuminated display figures, representing traditional characters and persons associated with the Halloween season. 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 constructed mainly of plastic but can be of various materials. They are dressed in appropriate textile outfits. The figures are approximately 24 inches in height.

ISSUE:

Whether the items at issue are properly classifiable under HTSUS heading 9502 as dolls, or 9618 as animated displays, 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 representing both humans and non-humans. 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 9502, provides for dolls representing only human beings. The Explanatory Notes to 9502 state in pertinent part:

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.***

This heading also excludes:

(c) Lay figures and automata of a kind used for shop dressing (heading 96.18).

The articles representing the witch, strawman and Dracula meet the description for dolls in the above heading. They have the physical appearance of human characters and, in this case, are dressed in characteristic festive and decorative attire to impart the Halloween mood. Application of GRI 1 to these articles results in their classification under heading 9502, as dolls representing only human beings.

Heading 9505, HTSUS, Festive, carnival or other entertainment 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.

The article representing the devil, the ghost and the skeleton traditionally symbolize the Halloween season. Under GRI 1, these articles are provided for under HTSUS 9505, Festive, carnival or other entertainment articles.

HOLDING:

The samples representing human characters such as the witch, strawman and Dracula are properly classifiable under subheading 9502.10.80, as other dolls, dutiable at a rate of 12% ad valorem.

The sample representing non-human characters such as the ghost, the devil and the skeleton, associated with a particular festive occasion, are properly classifiable under subheading 9505.90.60, dutiable at a rate of 3.1 percent ad valorem.

Sincerely,

John Durant, Director

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