HQ 0085898 - Reconsideration of H.Q. Ruling 084335; animated choir boy display figure; festive article; not doll - United States International Trade Commision Rulings

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HQ 085898

May 17, 1990

CLA-2 CO:R:C:G: 085898 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.8000, 9505.10.5000

Beth C. Brotman, Esq.
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, N.Y. 10004

RE: Reconsideration of H.Q. Ruling 084335; animated choir boy display figure; festive article; not doll

Dear Ms. Brotman:

This is in response to your letter of October 27, 1989, on behalf of McCrory Stores, requesting reconsideration of Headquarters Ruling Letter (HRL) 084335, dated August 15, 1989, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an animated choir boy display figure which is marketed and sold as a decorative article for Christmas festivities. A sample of the subject merchandise was submitted with your original ruling request.

FACTS:

The article at issue is an animated display figure depicting a choir boy. It is approximately 24 inches in height and is mounted on a wooden platform. Its body is comprised primarily of plastic, with detailed plastic face and hands, and hair of textile material on its head. The figure is wearing a red cap, red pants, a jacket and a plaid scarf, all of which are composed of textile material. An electric candle, consisting of a light bulb on a plastic cylindrical holder, is being held in the figure's right hand. Inside the figure's torso is a motor, which, when plugged into an electrical socket and switched on, causes the candle to light up and the figure's head and arm to move from side to side.

The importer states that the figure is intended to be displayed in the home during the Christmas season, and that it purchases the figures to display and sell in its "Decorations/Trim-a-Tree Department." The importer further states that the subject article is advertised and sold as a Christmas decoration item, along with other such items including Christmas lights, trees and wreaths. Information reflecting the manner in which the subject merchandise is displayed for retail sale was submitted by the importer to demonstrate that the merchandise is sold along with a variety of Christmas decorative articles.

ISSUE:

Whether the subject choir boy figure is properly classifiable as a doll under Heading 9502, HTSUSA, a festive article under Heading 9505, HTSUSA, or as an automaton/animated display figure under Heading 9618, HTSUSA.

LAW & ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

The Headings at issue in this case are:

(a) 9502, HTSUSA, Dolls representing only human beings and parts and accessories thereof:...

(b) 9505, HTSUSA, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:...

(c) 9618, HTSUSA, Tailors' dummies and other mannequins; automatons and other animated displays used for shop window dressing...

HRL 084335, which classified the subject merchandise as a doll under Heading 9502, followed another Headquarters Ruling, HRL 083835, dated June 9, 1989, which considered classification of similar figures in each of the headings listed above. HRL 083835 concluded, pursuant to GRI 1, that animated and illuminated figures representing human characters such as Mrs. Claus and a Christmas caroler were classifiable under subheading 9502.10.8000, HTSUSA, as other dolls. It also classified a similar figure, which depicts an angel, under Heading 9505, HTSUSA, because the angel was stated to symbolize the Christmas season. When reconsidering the rulings described above, it is necessary to examine the language of the relevant headings and the Explanatory Notes thereto, in conjunction with the GRI's. The Explanatory Notes to the HTSUSA, which constitute the official interpretation of the tariff at the international level, provide further guidance in determining the scope of each provision.

With regard to Heading 9618, we rule out classification in that provision because the language of the heading itself, as well as the Explanatory Notes thereto, limit the use of items classified therein to the display of goods or particular articles exhibited in shop windows. The subject 24 inch tall animated display figures are sold to consumers for display in the home during a particular holiday. They are not equipped for heavy-duty continual use like a shop window mannequin or robot/automaton. Accordingly, they are not classifiable in Heading 9618.

Next, we compare headings 9502 and 9505, HTSUSA. Heading 9502, the doll provision, is considered an eo nomine (i.e., "by name") provision. With regard to Heading 9502, HTSUSA, the provision for dolls representing only human beings, Explanatory Note (EN) 95.02, at p. 1586 states:

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 the use in Punch and Judy or marionette shows, or those of a caricature type.

Dolls are usually made of rubber, plastics, textile materials, wax, ceramics, wood paperboard, papier mache or combinations of these materials. They may be jointed and contain mechanisms which permit limb, head or eye movements as well as reproductions of the human voice, etc. They may also be dressed.

The General Explanatory Notes to Chapter 95, at p.1585, which explain the general scope of the chapter, provide:

This Chapter covers toys of all kinds whether designed for the amusement of children or adults....

A close reading of the Explanatory notes indicates that the subject merchandise is not excluded from Heading 9502. Pursuant to GRI 1, the display figures appear to be covered under Heading 9502, HTSUSA, as dolls. However, the question
remains as to whether another provision more specifically covers the subject Christmas animated display figures in light of their intended use as Christmas decorative articles.

Heading 9505, HTSUSA, covers festive articles. Explanatory Note 95.05, at p. 1590, states 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.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

For the most part, the items described above which fall under Heading 9505, HTSUSA, tend to have no function other than decoration.

It is Customs position that an article which, by its shape, design and ornamentation is appropriately used in connection with a recognized festive holiday, is an article that falls under Heading 9505, HTSUSA. The subject choir boy figure is marketed, sold and used as a Christmas display figure. It is not intended to be manipulated or played with, nor is it intended to be used on a year round basis. Rather, it is to be used to decorate the home during the Christmas season. As such, it is classifiable under Heading 9505.

GRI 3(a) applies when determining which of two provisions is most appropriate. It states, in pertinent part:

3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

Here, we have the difficult task of determining which provision, between 9502, an eo nomine provision, and 9505, a use provision, is considered more specific. In general, the heading providing the most specific description is that which has more difficult requirements to satisfy. Moreover, absent legislative intent to the contrary, when an article is classifiable under both a use and a name provision, then rules of construction applied in cases involving the Tariff Schedules of the United States (TSUS) hold that the use provision is generally more specific. See United States v. Siemens America, Inc., 653 F.2d 471, 477 (C.C.P.A. 1981), cert. denied, 454 U.S. 1150 (1982).

In applying the above rule of construction to the competing headings at issue in this case, it is our view that the festive article use provision is more specific than the eo nominee doll provision. Therefore, the subject choir boy display figure is properly classifiable under Heading 9505, as a festive article for Christmas festivities.

Having determined that the merchandise is classifiable under Heading 9505, HTSUSA, a decision as to the appropriate subheading is necessary. Subheading 9505.10 provides for articles for Christmas festivities. Those articles are further broken down at the eight digit level into Christmas ornaments, nativity scenes and other. We rule out nativity scenes because the subject choir boy figure does not depict such a character or scene, and Christmas ornaments because Customs has determined that for tariff purposes, to qualify as a Christmas ornament the item must be marketed and sold as a Christmas tree ornament, that there be some method, generally a loop attached to the top to secure or hang the item on a tree, and that the item is not too big or too heavy to be hung or attached to a tree. Accordingly, the subject choirboy display figure falls into the "Other" provision.

The final issue to determine is whether the figure is essentially "of plastics" and classifiable under subheading 9505.10.4000, HTSUSA, which provides for Christmas articles of plastics, or whether the figure is not essentially "of plastics," and therefore classifiable under subheading 9505.10.5000, HTSUSA, the provision for Christmas articles other than of plastics. Although the form of the figure is comprised of plastic, textile and electromechanical components are present to the extent that the item cannot be
considered essentially of plastics. Therefore, it is classifiable under subheading 9505.10.5000, HTSUSA, which provides for Christmas articles, other, other.

HOLDING:

Pursuant to Section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)), HRL 084335, which classified the subject animated choir boy display figure as a doll under subheading 9502.10.8000, HTSUSA, is hereby modified. For the reasons set forth above, the subject animated display figure is classifiable as a festive article for Christmas, comprised of materials other than plastics, under subheading 9505.10.5000, HTSUSA. Articles classified under this provision are subject to a duty rate of 5.8 percent ad valorem. HRL 084335 is modified accordingly.

This modification is effective immediately. A copy of this ruling letter should be attached to the entry documents filed at the time this type of merchandise is imported.

Sincerely,

John Durant, Director

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