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HQ 952982




April 23, 1993

CLA-2 CO:R:C:F 952982 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

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. 2809-92-100808, filed April 30, 1992, concerning classification of plastic resin figurines; Heading 3926, other articles of plastics; Not 3924, household articles of plastics; Not 9505, festive articles; Not 9502, dolls; HRL's 952520, 951422

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 polyester alkyd phthalate figurines identified as a Poly Family Shopping Couple (style #11060), a Poly News Boy (style #12027), and a Poly Kids with Snowball (style #12124). The figurines range in height from approximately 2-1/2 inches to 4-1/2 inches and depict children with snowballs, members of a band, or individuals carrying Christmas gifts. Each figure rests on a patch of snow. Based on a Customs Laboratory Report, issued February 4, 1993, it appears the articles are composed primarily of a plastic resin.

The protestant entered the articles under subheading 9505.10.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Other: Of plastics," at a duty rate of 8.4 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 poly figurines are classifiable in heading 3926 as other articles of plastics, 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. 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 GRI's may then be applied. 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.

Customs will consider articles, such as the figurines, to be made of non-durable material since they are not designed for sustained wear and tear, nor are 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, as opposed to, utilitarian.

However, when examining each figurine, in its entirety, it is evident that the articles are not traditionally associated or used with the particular festival of Christmas. The figurines are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. See Headquarters Ruling Letters 952520, issued October 22, 1992 and 951422, issued November 25, 1992, stating that, generally, figurines and dolls are not traditionally associated or used with a particular festival. The articles must be classified elsewhere.

Heading 9502 provides for dolls representing human beings, while heading 3926 provides for other articles of plastics. 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." The EN's to 3926 indicate that the heading includes statuettes and other ornamental articles.

In this case, the articles are appropriately described as ornamental plastic figurines or statuettes as compared to dolls.

We note that 3924, providing for tableware, kitchenware, other household articles and toilet articles, of plastics includes articles which, unlike the subject articles, primarily are utilitarian in nature. Thus, the terms of the headings and applicable EN's direct us, pursuant to GRI 1, to classify the merchandise within 3926, as other articles of plastics. Because the plastic figurines are ornamental, they are classifiable in subheading 3926.40.00.

HOLDING:

The figurines are classifiable in subheading 3926.40.00, HTSUSA, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The applicable rate of duty is 5.3 percent ad valorem.

Since reclassification of the merchandise as indicated above would result in a lower rate of duty than claimed, you are instructed to allow the protest in full. A copy of this decision with the Form 19 should be sent to the protestant.

Sincerely,

John Durant, Director

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