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HQ 952981


March 18, 1993

CLA-2 CO:R:C:F 952981 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.40

District Director
U.S. Customs Service
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126

RE: Decision on application for further review of Protest No. 2809-92-100811, filed April 30, 1992, concerning classification of wooden boy and girl dolls, dressed in plaid; Heading 9502, Dolls representing only human beings; Not 9505, Festive articles; HRL 952821

Dear Sir:

This is a decision on a protest filed April 30, 1992, against your decision in the classification of certain merchandise liquidated on January 31, 1992.

FACTS:

The articles at issue, imported from Taiwan, are wooden boy and girl dolls, dressed in plaid (style #25072). The wooden figures stand 7 inches tall and are dressed in textile outfits. The girl has a red felt hat, red pants with lace trim, and a plaid jacket with a textile rose at the collar. She is holding a wreath which has a red ribbon, a bell, and some holly berries. The boy is similar in appearance except, instead of a wreath, he is holding a present.

The protestant entered the articles under subheading 9505.10.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Other: Other," at a duty rate of 5.8 percent ad valorem.

You classified the articles under subheading 9502.10.40, as "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height," at a duty rate of 12 percent ad valorem.

ISSUE:

Whether the boy and girl dolls, dressed in plaid, are classifiable in heading 9502 as dolls or 9505 as festive articles.

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.

Heading 9505 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.

First, the articles are made of non-durable material. Customs will consider articles, such as the boy and girl dolls, to be made of non-durable material since they are not designed for sustained wear and tear, nor are they purchased because of their extreme worth or value (as would be the case with a decorative, yet costly, piece of art or crystal). In addition, the articles' primary function is decorative.

However, when examining the articles, as a whole, it is evident that the boy and girl dolls are not traditionally associated or used with the particular festival of Christmas. Generally, figurines and dolls are not traditionally associated with the particular festival of Christmas; they are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. See Headquarters Ruling Letter 952821, issued March 3, 1993. It currently is our position that the motif of an article is not dispositive of its classification and that motif does not transform an item into a festive article. The fact that the subject dolls are dressed in plaid and are carrying either a wreath or present does not indicate that they are traditionally associated or used with Christmas, in particular. The articles must be classified elsewhere.

Heading 9502, HTSUSA, provides for dolls representing human beings. The EN's to 9502 state that "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...."

Because the articles resemble human beings and fit the description of dolls, as referred to in the EN's, they are classifiable, pursuant to GRI 1, within heading 9502. The appropriate subheading is 9502.10.40.

HOLDING:

The wooden boy and girl dolls, dressed in plaid, are classifiable in subheading 9502.10.4000, HTSUSA, as "Dolls, representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The general column one rate of duty is 12 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision with the Form 19 should be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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