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HQ 955529




March 16, 1994

CLA-2 CO:R:C:F 955529 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020; 9502.10.8000

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. 5501-93-100356, filed November 1, 1993, concerning the classification of articles identified as a hanging witch, a shrieking bat, and a shrieking spider.

Dear Sir:

This is a decision on a protest timely filed on November 1, 1993, against your decision in the classification and liquidation of an entry in September 1993, of hanging witches, shrieking bats, and shrieking spiders.

FACTS:

You classified the hanging witches under subheading 9502.10.8000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Other: Other," with an applicable duty rate of 12 percent ad valorem. You classified the shrieking bats and shrieking spiders under subheading 9503.49.0040, HTSUSA, the provision for "Other toys...and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys having a spring mechanism: Other," with an applicable duty rate of 6.8 percent ad valorem.

Protestant claims that both articles should be classified under subheading 9505.90.6090, HTSUSA, as festive articles. The applicable duty rate for the claimed provision is 3.1 percent ad valorem.

The hanging witch, identified by item no. HW-4, is comprised essentially of plastic and measures approximately 24 inches in height (from the tip of the hat to the feet). The figure wears a fabric dress and hat, and straddles a broom measuring approximately 31 inches in length. The broom's bristles are comprised of sisal or hemp, and the broomstick is plastic. There is a plastic cord for suspending the item. The figure contains an electronic system powered by two "AA" batteries. After the switch has been turned on, hand clapping activates the system. The figure then moves, its eyes light up, and it makes ghostly sounds.

The shrieking bat, identified by item no. SB-12, is dome- shaped with wings, is comprised essentially of plastic and measures approximately 3-1/2 inches in height. There is a plastic cord for suspending the article, which contains an electronic sound system, powered by two "AA" batteries. When the switch is turned on, noise activates the item, which shakes and makes eerie sounds.

The shrieking spider, identified by item no. SS-12, is dome shaped with eight bendable, wire and textile legs. The article is essentially plastic and measures approximately 3-1/2 inches in height. The shrieking spider also has a plastic cord to suspend it, and an electronic, battery-powered sound system. When turned on, the item is sound activated, making spooky noises and movements.

ISSUE:

Whether or not the items are classified as festive articles.

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 articles 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). The items are primarily decorative in function, although the witch figure may be manipulated and is apt to provide some degree of amusement.

Upon examination of the third criterion, however, witches, bats, and spiders 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. Although frightening and/or repulsive to some humans, bats and spiders are merely flying mammals and arachnids, respectively. Witches are often the subject of mythology, history, plays, movies, and cartoons. None of the three items bears a traditional significance to a festival or holiday. In light of the above, the items are not classified as festive articles 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 hanging witch, 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 (e.g., boudoir dolls, mascot dolls), or for use in Punch and Judy or marionette shows, or those of a caricature type.

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 hanging witch is thus classified as a doll in subheading 9502.10.8000.

With regard to both the shrieking bat and shrieking spider, heading 9503, HTSUSA, provides for "Other toys...and accessories thereof." The notes to chapter 95 state that the chapter covers toys of all kinds, whether designed for the amusement of children or adults. The EN to heading 9503 indicates that the heading covers toys representing non-human creatures, and that many of the toys are mechanically or electrically operated. It is clear that heading 9503 accurately describes the shrieking bat and shrieking spider.

HOLDING:

The hanging witch, item no. HW-4, is classified in subheading 9502.10.8000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Other: Other." The applicable duty rate is 12 percent ad valorem.

The shrieking bat and shrieking spider, item nos. SB-12 and SS-12, respectively, are classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...and accessories thereof: 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 applicable duty rate is 6.8 percent ad valorem.

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, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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