HQ 0951352 - Modification of HRL 088529; Hang and stuff puppet stocking in 9503.49.0020, HTSUSA; Other toys, toys representing animals or non-human creatures. - United States International Trade Commision Rulings

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HQ 951352

October 2, 1992

CLA-2 CO:R:C:F 951352 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

Mr. David Smith
Rennoc Corporation
3501 S.E. Boulevard
Vineland, NJ 08360-7789

RE: Modification of HRL 088529; Hang and stuff puppet stocking in 9503.49.0020, HTSUSA; Other toys, toys representing animals or non-human creatures.

Dear Mr. Smith:

In Headquarters Ruling Letter (HRL) 088529 issued April 22, 1991, bear, elf and reindeer Christmas stockings and a puppet stocking of a dog, imported from Thailand and Taiwan, were classified in subheading 9505.10.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles,...: Articles for Christmas festivities and parts and accessories thereof: Other (than Christmas ornaments): Other (than of plastics)." We have reviewed that ruling and have found it to be partially in error. The bear, elf and reindeer stockings were properly classified. The correct classification of the puppet stocking of a dog is as follows.

FACTS:

The article at issue, item #10666, is a "hang and stuff" puppet stocking of a dog, which measures approximately 18 inches long. The dog is wearing a red suit with three simulated gold buttons and a red and white cap adorned with two holly leaves and one berry. Its shirt and top slipper portions include an imprint of holly-type leaves and berries. The article includes an open pouch for the insertion of candy and little gifts, a textile loop for hanging and a bottom opening permitting insertion of a hand. You stated, telephonically, on March 27, 1992, that the article is distinguishable (e.g, primarily functions) as a puppet.

The other articles include: item #10710, a stuffed bear stocking; item #10730, an elf stocking; item #10760, a reindeer stocking; and item #10732, a reindeer, with suspenders and necktie, stocking. Although these articles all possess open pouches for the insertion of candy and little gifts, as well as textile loops for hanging, they do not include a bottom opening permitting insertion of a hand.

ISSUE:

Whether the "hang and stuff" puppet stocking is classifiable in subheading 9503 as an other toy or is classifiable in 9505 as a festive article.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Upon review of the various HTSUSA headings, it appears the puppet stocking is potentially classified in either heading 9503 or 9505. Heading 9505, HTSUSA, provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate 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....

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

In this case, the puppet stocking's primary function is not as a decoration, but instead it is primarily designed to amuse a child who would play with the article. In addition, when examining the puppet stocking, as a whole, it is evident that the article is not traditionally associated or used with the particular festival of Christmas. As a puppet, it is likely to be used throughout the year. It is not akin to those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. The article must be classified elsewhere.

Heading 9503, HTSUSA, provides for, inter alia, other toys. The EN's to Chapter 95, HTSUSA, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs' position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUSA. Customs defines principal use as that use which exceeds each other single use of the article. In this case, since the puppet will be principally use as a toy, it is classifiable in 9503. The appropriate subheading is 9503.49.0020.

HOLDING:

The "hang and stuff" puppet stocking of a dog is classifiable in subheading 9503.49.0020, HTSUSA, as "Other toys;...: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys not having a spring mechanism: Other." The general column one rate of duty is 6.8 percent ad valorem. We note that the ruling being modified indicated a general column one rate of duty of 5.8 percent ad valorem. However, an article classified in 9503.49.0020, which is a product of Thailand, is eligible for duty free treatment under the Generalized System of Preferences (GSP), provided it meets the requirements of General Note 3(c)(ii), HTSUSA.

This notice should be considered a modification of HRL 088529 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 088529 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 088529 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 you may 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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