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HQ 088164


August 5, 1991

CLA-2 CO:R:C:F 088164 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000; 9505.10.4000; 9505.10.5000; 7117.90.5000; 4421.90.9040

Mr. Ken August
Import Manager
Easter Unlimited, Inc.
80 Voice Rd.
Carle Place, NY 11514

RE: Modification of Pre-Classification Review (PC) #835839 issued January 25, 1989; Christmas Articles; Halloween Animated Display Figures and Pin-On Jewelry; Easter Basket

Dear Mr. August:

This is in regards to your letter of October 16, 1990, wherein you alerted our New York office of the possible misclassification of several articles covered in PC #835839. Your letter has been forwarded to our office for response.

FACTS:

A description of the articles at issue, along with their previous classification, is as follows:

Animated Display Figures
Item Numbers
9291 20 Inch Animated Dracula 9502.10.8000 9292 20 Inch Animated Witch " " "
9293 20 Inch Animated Ghost 9503.80.2000
9294 20 Inch Animated Convict 9502.10.8000

Christmas Articles
Item Numbers
7054 12 Inch Inflatable Candy Cane 9505.10.2500 7055 48 Inch Inflatable Candy Cane " " "
7057 24 Inch Inflatable Wreath " " "
7058 12 Inch Inflatable Wreath " " "
7060 16 Inch Inflatable Ornament " " "
7095 18 Inch Christmas Stocking " " "
7099 18 Inch Stocking Pet " " "
7101 33-1/2 Inch Large Plush " " "
Christmas Stocking " " "

7102 18 Inch Knit Stocking " " "
7103 23 Inch Plush Stocking " " "
7271 17 Inch Glitter Stocking " " "

Jewelry
Item Numbers
9300 Pumpkin Action Pin-on 9505.90.6000
9302 Spooky Eyes Pin-On " " "
9305 Wind-up Monster Pin-On " " "

Basket
Item Number
3301 Wooden Bunny Basket 9505.90.6000

ISSUES:

Whether animated display figures representing human beings are classifiable as dolls in heading 9502, HTSUSA, or as festive articles in heading 9505, HTSUSA.

Whether animated display figures representing non-humans are classifiable as other toys in heading 9503, HTSUSA, or as festive articles in heading 9505, HTSUSA.

Whether the Christmas articles are classifiable as Christmas ornaments in subheading 9505.10.25, HTSUSA, or as other Christmas articles in either HTSUSA subheadings 9505.10.40 or 9505.10.50.

Whether the Halloween pins are classifiable as festive articles in heading 9505, HTSUSA, or as imitation jewelry in heading 7117, HTSUSA.

Whether the wooden bunny basket is classifiable as a festive article in heading 9505, HTSUSA, or as an other article of wood in heading 4421, HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Animated Display Figures

Heading 9502, HTSUSA, provides for dolls representing human beings. Heading 9502 is considered as an eo nomine (i.e., "by name") provision. This heading also happens to describe items 9291, 9292, and 9294 -- the animated display figures representing human beings.

Heading 9505, HTSUSA, provides for festive, carnival, and other entertainment articles. The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the scope of the headings. The Explanatory Note to heading 9505 indicates 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 holiday 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.

Articles classifiable in heading 9505 tend to have no other function than decoration. Heading 9505 is generally regarded as a use provision. Hence, Additional U.S. Rule of Interpretation 1(a) must be reviewed.

Additional U.S. Rule of Interpretation 1(a) indicates that:

In the absence of special language or context which otherwise requires--
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

As animated display figures belong to a class of merchandise whose principal use is festive and serve primarily a decorative purpose, they are classifiable as festive articles in heading 9505.

Since items 9291, 9292, and 9294 are prima facie classifiable in two headings (9502 and 9505), GRI 3 must be consulted. GRI 3(a) directs that the heading which provides the most specific description of the merchandise is to be preferred. As between eo nomine and use provisions, the latter is generally regarded as being the more specific provision because it is the hardest to satisfy. Consequently, these animated display figures are classifiable as festive articles in heading 9505.

Item 9293 (the animated display figure representing a non-human figure) is also more properly classifiable in heading 9505. Heading 9505 "festive articles" rather than heading 9503 "other toys" provides for the more specific description of this particular article.

Christmas Articles

Candy canes, wreaths, and ball ornaments are all articles traditionally used at Christmas festivities. Moreover, the Explanatory Note to heading 9505 includes Christmas stockings among those items deemed exemplars of that provision. Consequently, items 7054, 7055, 7057, 7058, 7060, 7095, 7099, 7101, 7102, 7103, and 7271 are classifiable in heading 9505.

Subheading 9505.10, HTSUSA, provides for articles for Christmas activities. The items at issue are classifiable within this provision. We now turn our attention to their proper classification at the eight-digit subheading level.

Subheadings 9505.10.10, 9505.10.15, and 9505.10.25 cover Christmas ornaments of glass, wood, and other, respectively. To qualify as a Christmas ornament, Customs requires that the following three criteria be met:

1. that the item is advertised and sold as a Christmas tree ornament;

2. that there is some method, generally a loop attached to the top, to hang the item on a tree; and

3. that the item is not too big or too heavy to be hung or attached to a tree.

(See Headquarters Ruling Letter 084606 of July 31, 1989.)

The candy canes, wreaths, and stockings fail to meet the above-mentioned criteria. Moreover, it is our belief that the ornament ball is too large to hang from a tree. Accordingly, none of these articles qualifies as a Christmas ornament for tariff purposes.

Subheading 9505.10.30, HTSUSA, covers nativity scenes and figures thereof. The items at issue neither qualify as nativity scenes nor as parts thereof. Subheading 9505.10.40, HTSUSA, covers other Christmas articles of plastics. This provision best describes items 7054, 7055, 7057, 7058, and 7060. Subheading 9505.10.50, HTSUSA, provides for other Christmas articles constructed of materials other than plastics. This subheading describes items 7095, 7099, 7101, 7102, 7103, and 7271.

Jewelry

The jewelry articles under review serve to adorn, not to decorate. Moreover, while these articles display Halloween motifs, they do not belong to a class of merchandise whose principal use is festive. Consequently, items 9300, 9302, and 9305 are not classifiable as festive articles in heading 9505.

Heading 7117, HTSUSA, provides for " [i]mitation jewelry." Chapter 71, HTSUSA, Note 10 indicates that "[f]or the purposes of heading 7117, the expression 'imitation jewelry' means articles of jewelry within the meaning of paragraph (a) of note 8 above...." Note 8(a) defines "articles of jewelry" as: "Any small objects of personal adornment (gem set or not) (for example rings...brooches...)...." A brooch is defined in the Jeweler's Dictionary, 3rd edition, 1976, published by Jewelers' Circular Keystone, as: "A piece of jewelry to be worn pinned to clothing, as at the neck or shoulder, on the breast or hat, or in the hair."

Items 9300, 9302, and 9305 feature a bar-pin clasp (the type of clasp routinely used on jewelry pins or brooches) and are worn on the breast. As these items adorn the body and possess features associated with brooches, they are classifiable in Heading 7117, HTSUSA, which provides for imitation jewelry.

Basket

Item 3301 does not qualify as a festive article of heading 9505. Baskets per se are not holiday related.

Heading 4602, HTSUSA, provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601 (cork). As item 3301 is made of wood, it is not classifiable in heading 4602.

Heading 4421, HTSUSA, provides for other articles of wood. Item 3301, if not classifiable elsewhere, would be classified under this heading.

HOLDING:

Items 9291, 9292, 9293, and 9294 are classifiable in subheading 9505.90.6000, HTSUSA, which provides for festive, carnival and other entertainment articles; other (than articles for Christmas activities): other. The applicable rate of duty is 3.1 percent ad valorem.

Items 7054, 7055, 7057, 7058, and 7060 are classifiable in subheading 9505.10.4000, HTSUSA, which provides for festive, carnival and other entertainment articles; articles for Christmas festivities: other: of plastics. The applicable rate of duty is 8.4 percent ad valorem.

Items 7095, 7099, 7101, 7102, 7103, and 7271 are classifiable in subheading 9505.10.5000, which provides for festive, carnival or other entertainment articles; articles for Christmas activities; other: other. The applicable rate of duty is 5.8 percent ad valorem.

Items 9300, 9302, and 9305 are classifiable in subheading 7117.90.5000, HTSUSA, which provides for imitation jewelry: other (than of base metal): other, valued over 20 cents per dozen pieces or parts. The applicable rate of duty is 11 percent ad valorem.

Item 3301 is classifiable in subheading 4421.90.9040, HTSUSA, which provides for other articles of wood: other: other, other. The duty rate is 5.1 percent ad valorem.

This notice to you should be considered a modification of PC #835839 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to PC #835839 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your company's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, PC #835839 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your company may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director
Commercial Rulings Division

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