HQ 0954996 - Decision on application for further review of Protest No. 3501-93-100345, filed July 22, 1993; Teen Boy and Girl cake decoration figures in heading 9502 as dolls; Not 3926 articles of plastics; Not 9505 festive, carnival or other entertainment articles - United States International Trade Commision Rulings

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HQ 954996

April 15, 1994

CLA-2 CO:R:C:F 954996 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000

District Director
U.S. Customs Service
110 South 4th Street - Rm 154
Minneapolis, MN 55401

RE: Decision on application for further review of Protest No. 3501-93-100345, filed July 22, 1993; Teen Boy and Girl cake decoration figures in heading 9502 as dolls; Not 3926 articles of plastics; Not 9505 festive, carnival or other entertainment articles

Dear Sir:

This is a decision on a protest filed July 22, 1993 against your decision in the classification of merchandise liquidated on April 23, 1993.

FACTS:

The merchandise at issue, manufactured in China, consists of items intended to be sold to the bakery industry as cake decorations. However, the sample submitted of the two piece assortments, each depicting a teen boy and girl listening to the radio and dancing, respectively, (Items #60110 and #60111) reveals that the figures are composed of polyvinyl chloride (PVC) and are of sufficient quality to be retained by a child and subsequently used for display and/or amusement. On March 29, 1994 we had the opportunity to meet with Mr. Murphy, the President of DecoPac, and counsel. This meeting, as well as counsel's submission of March 30, 1994, provided us with further detail regarding the condition and packaging of the merchandise when imported and sold to the bakeries.

It is our understanding that the two individually wrapped figures, each in a clear, poly bag, are placed inside another clear, poly bag which is heat sealed. The product is imported in grosses (144 sets per package) pre-packaged as sets in food-grade poly bags. Once imported, the gross shipments are packaged six to a box for resale to DecoPac's customers. The articles remain in the sealed poly bag when placed in the six unit, exterior box which itself is designed to facilitate the sale and shipment of
the sets. An instruction sheet for decorating the cake, as required by DecoPac's license agreements, and a sheet with six peel and stick warning labels, as required by the Consumer Product Safety Commission, are included within the exterior box.

Once the box of six sets of the merchandise arrives at the bakery, the baker will decorate and ice the cake consistent with DecoPac's instructions, but, in most cases, will not position the decorations on the cake. Rather, the retail consumer will purchase a decorated cake in a domed box with the pvc cake decorations still in the same food-grade poly bag attached to or enclosed with the cake box. The sale of the decorated cake in this manner eliminates the likelihood that the decorations will shift or tip in transit and mar the iced cake prior to the birthday celebration.

The protestant entered the merchandise under subheading 9505.90.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as festive, carnival or other entertainment articles, other, other at a duty rate of 3.1 percent ad valorem.

You maintain that the merchandise is classified under subheading 9502.10.40, HTSUSA, as dolls representing only human beings, other (than stuffed) at a duty rate of 12 percent ad valorem.

The protestant submits that if the figures are not classified in subheading 9505.90.60, HTSUSA, they are classified, alternatively, in subheading 3926.40.00, HTSUSA, as other articles of plastics, statuettes and other ornamental articles.

ISSUE:

Whether the figures are classified within heading 9505 as festive, carnival or other entertainment articles; 9502 as dolls representing only human beings; or 3926 as other articles of plastics.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under
the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The ENs 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....

The figures do not meet the criteria for festive articles, because they are not traditionally associated or used with a particular festival. Customs has maintained that, generally, figurines and dolls are not traditionally associated or used with a particular festival. They are not ejusdem generis with those articles cited in the ENs to 9505 as exemplars of traditional, festive articles. See Headquarters Ruling Letters (HRLs) 952821, issued March 3, 1993, and 952981, issued March 18, 1993.

However, we note that EN (A)(1) to 9505 indicates that cake decorations are classified within heading 9505. Based on the information submitted, including an examination of the samples as well as the catalog illustrating the products, we do not believe that the merchandise qualifies as cake decorations provided for in the EN. Cake decorations, in contrast to the subject articles, generally are made of extremely cheap, non-durable material and are disposed of once the cake is eaten. In contrast, these articles although marketed as cake decorations, are unique insofar as they are of sufficient quality to be retained by a child, perhaps for play. In fact, DecoPac advertises and markets numerous articles as cake decorations, including Barbie and troll dolls and plastic picture frames, which do not fit the description of "cake decorations." Accordingly, these figures are not classifiable within heading 9505.

An additional heading to be considered in this case is 9502 which provides for dolls representing human beings. The EN 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...."

As the figures are of sufficient quality to be retained by a child and be used for amusement and display, throughout the year, as a doll, we disagree with the protestant's position that the figures have no function or utility in non-celebratory occasions. Accordingly, the figures are classifiable within heading 9502.

The protestant submits, alternatively, that the merchandise is properly classified within heading 3926 as other articles of plastics as opposed to dolls within heading 9502. In HRLs 088895, issued March 22, 1993, 085164, issued October 18, 1990, and 082001, issued February 13, 1990, Customs addressed the distinction between figures classified as dolls and plastic statuettes. In those decisions figures depicting Peanuts cartoon characters and representing players from the National Basketball Association (NBA), the National Football League (NFL), and Major League Baseball (MLB) were classified within heading 9502 as dolls.

Customs maintained in those rulings that in accordance with prior judicial decisions, the term "doll" was to be interpreted broadly and that the classification of articles as dolls depends on the various circumstances and factors in each individual case. We reiterate that the ENs provide not only for amusing type dolls, but also for decorative or collectable type dolls such as those at issue. In HRL 085164, supra, Customs stated that although figures may be depicted in a set pose and affixed to a base or a stand, this does not change classification of such articles from dolls to other articles of plastic. The subject figures are not classifiable within heading 3926.

This position is consistent not only with the rulings discussed above, but also with the following decisions where the figures were classified as dolls or toys: HRL 953473, issued September 15, 1993, Aladdin and Wizard figures; HRL 952981, issued March 18, 1993, wooden boys and girls dressed in plaid; New York Ruling Letter (NYRL) 841282, issued May 25, 1989, plastic railway workers; NYRL 855794, issued September 24, 1990, plastic comic book characters; and NYRL 833463, issued December 15, 1988, plastic Ronald McDonald.

On the contrary, counsel notes that in NYRL 842873, issued July 19, 1989, a plastic rabbit figure was classified within heading 3926. In this regard, we reiterate that classification depends on the various circumstances and factors in each
individual case. It appears that the subject article in NYRL 842873 was not designed and used principally for amusement as a toy, but instead resembled a plastic figurine or statuette.

The subject figures are classifiable, pursuant to GRI 1, within heading 9502 as dolls.

HOLDING:

The figures depicting teen boys and girls are classified in subheading 9502.10.4000, HTSUSA, as "Dolls representing only human beings...: Dolls, whether or not dressed: Other: Not over 33 cm in height." The applicable rate of duty is 12 percent ad valorem.

Because 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.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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