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HQ 955528


February 9, 1994

CLA-2 CO:R:C:F 955528 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000

District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261

RE: Decision on Application for Further Review of Protest No. 5501-93-100358, filed November 1, 1993, concerning the classification of an article identified as a small flying witch with broom.

Dear Sir:

This is a decision on a protest filed on November 1, 1993, against your decision in the classification and liquidation of an entry in November 1993, of small flying witches with brooms.

FACTS:

You classified the item under subheading 9502.10.2000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Stuffed," with an applicable duty rate of 12 percent ad valorem. Protestant claims that the item should be classified under subheading 9505.90.6090, HTSUSA, as a festive article. The applicable duty rate for the claimed provision is 3.1 percent ad valorem.

The small flying witch with broom, identified by item no. ARP 205, is comprised essentially of stiff paper and contains no stuffing materials. The witch's "hair" and the broom's bristles are sisal or hemp and the broomstick is wood. The witch measures approximately eight inches in height, with the broom measuring approximately sixteen inches in length. There is a string for suspending the article.

ISSUE:

Whether the item is classified in heading 9505, HTSUSA, as a festive article; or in heading 9502, HTSUSA, as a doll.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all 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 HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUSA, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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.

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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the subject item to be made of non-durable material (since it is not designed for sustained wear and tear, nor is it purchased because of its extreme worth or value). The article also functions primarily as a decoration.

Upon examination of the third criterion, however, we find that witches are not traditionally associated or used with a particular festival. They are not the same types of articles cited in the ENs to 9505, as examples of traditional, festive articles, nor do they particularly relate to Halloween. Witches are often the subject of mythology, history, plays, movies, and cartoons bearing no significance to a festival or holiday. In light of the above, the item is not classified as a festive article under heading 9505, HTSUSA, and must be classified elsewhere.

The protestant cites certain Headquarters Ruling Letters (HRLs) - each issued several years prior to the subject case - in which a choir boy display figure and scarecrow figures were classified in heading 9505, HTSUSA. While use of the HRLs to support protestant's claim is understandable, the findings contained therein no longer reflect Customs position regarding the classification of festive articles. Appropriate action is currently being taken to revoke or modify the rulings.

With respect to the small flying witch with broom, heading 9502, HTSUSA, provides for "Dolls representing only human beings and parts and accessories thereof." The ENs to heading 9502 indicate that the heading includes not only dolls designed for the amusement of children, but also dolls intended for decorative purposes, or those of a caricature type. The ENs also specifically mention materials comprising the subject witch,
stating that dolls are usually made of rubber, plastics, textile materials, wax, ceramics, wood, paperboard, paper mache or combinations of these materials.

In HRL 952821, issued March 3, 1993, this office held that figures of a witch and a vampire were classified not as festive articles in heading 9505, HTSUSA, but as dolls in heading 9502. We noted that, although the nose, chin, or teeth of such figures might be bigger/longer than the usual human feature counterparts, and although a figure might be widely recognized as a non-human creature in popular culture, these embellishments and cultural perceptions did not render the figures non-human creatures for classification purposes. See HRL 950698, issued March 20, 1992. The small flying witch with broom is thus classified as a doll in subheading 9502.10.4000.

HOLDING:

The small flying witch with broom, item no. ARP 205, is classified in subheading 9502.10.4000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The applicable duty rate is 12 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, the protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned 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

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