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HQ 960136




July 24, 1997

CLA-2 RR:TC:FC 960136 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: Application for Further Review of Protest No.2704-96-102971; injured rubber body parts/ props; ENs 95.05, 95.03; HRLs 955527, 956553, 955758, 955529 and 088221; U. S. v. Topps Chewing Gum

Dear Port Director:

The following is our response to the application for further review of protest 2704-96-102971 concerning your classification decision regarding articles identified as injured rubber body parts/props, under the Harmonized Tariff Schedule of the United States (HTS). Descriptive literature was submitted for our review.

FACTS:

The subject articles are various life-size rubber representations of grotesquely injured body parts and whole corpses. According to protestant, the articles are used as props at haunted houses and Halloween events. Protestant did not indicate where or when (seasonal or year-round) these articles are sold.

Protestant was directed to enter the rubber injured body parts/props under subheading 4016.99.6050, HTS, as "Other articles of vulcanized rubber other than hard rubber: Other: Other: Other, Other." Protestant asserts that the articles are classifiable under subheading 9505.90.6090, HTS, as "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other; Other." The entry, made in July 1996, was liquidated on September 13, 1996, and a protest was timely filed on October 1, 1996. The headings under consideration are:

4016 Other articles of vulcanized rubber other than hard rubber

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof

ISSUE:

Whether the injured rubber body parts/props are classifiable as other articles of plastic, festive, carnival and other entertainment articles or as toys.

LAW AND ANALYSIS:

Classification under the HTS is made in accordance with the General Rules of Interpretation (GRI's). 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 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 HTS by offering guidance in understanding the scope of the headings and GRI's.

Heading 9505, HTS, 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 nondurable 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, HTS, 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,

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. An examination of the props clearly indicates that they do not meet the three criteria and therefore are not considered festive articles for tariff purposes.

The quality of the rubber of the body parts appears to indicate that the props are designed for sustained wear and tear. As they are designed for sustained wear and tear, the props are considered made of "durable material" for tariff purposes. The articles appear to have some decorative function, but are also apt to provide some degree of amusement. Furthermore, grotesquely injured body parts and corpses are not traditionally associated or used with a particular festival. Grotesquely injured body parts and corpses 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. These articles are scary all year round and bear no significance to a festival or holiday.

It appears that these articles are used routinely in numerous adaptations for theater, television, printed media, etc. to portray gruesome injuries inflicted upon a human body. We note that as such, their primary purposes is broader than putting an individual at a humorous disadvantage. Therefore, the articles are not classified as "festive" or "entertainment" articles under heading 9505, HTS, and must be classified elsewhere. For a further discussion of "Halloween" and heading 9505, HTS, see Headquarters Ruling Letter (HRL) 955527 dated March 1, 1994 and HRL 956553 dated September 19, 1994.

Heading 4016, HTS, provides for "[o]ther articles of vulcanized rubber other than hard rubber, " and describes the article because it is the articles' most significant constituent material. Heading 9503, HTS, provides for "[o]ther toys; reduced- size ("scale") models...and accessories thereof...." A toy, simply defined, is an object designed for the amusement of a child or an adult. The ENs to chapter 95 indicate that the chapter covers toys of all kinds, whether designed for the amusement of children or adults.

In U. S. v. Topps Chewing Gum, 58 CCPA 157, C.A.D. 1022 (1971) [Topps] it was held that articles which may lack the material features to be a manipulative plaything as such, but because of their cartoon-like, comical appearance, or scary look, would likely be used as an interesting or novelty decorative object, are considered primarily used for amusement purposes or as a source of frivolous entertainment for children or adults. In other words, if the article's appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys, the article's principal use is to amuse. Therefore, the article is capable of being classifiable as a toy. We find this article, due to its scary nature and its likely use as a novelty article, meets the Topps test and therefore is capable of being classified as a toy. For additional exemplars of articles classifiable according to this principle see, HRLs 955758 dated April 15, 1994, 955529 dated March 16, 1994, and 088221 dated May 30, 1991.

Because the injured rubber body parts/props have rubber as a constituent material and also have been determined to meet the definition of a toy, they are described by two different headings. Inasmuch as the articles are described by two different headings, they are not classifiable according to GRI 1.

GRI 3 governs goods classifiable under two or more headings. GRI 3(a) states that where goods are classifiable under two or more headings, the heading that provides the most specific description will be preferred. The Explanatory Notes, for GRI 3(a) recognize the difficulty of establishing rules for determining the heading that provides the most specific description; however, the Notes state that "[i]f the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete." Heading 9503, HTS, provides the more specific description of the merchandise. The description "toy" identifies the article as a whole, and therefore is more specific, than the description "rubber article" which identifies the articles based on their most significant constituent material. The rubber injured body parts/props are classifiable under subheading 9503.90.0030, as "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other: Other: Other toys (except models) not having a spring mechanism."

HOLDING:

The injured rubber body parts/props are classified under subheading 9503.90.0030, HTS, as "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other: Other: Other toys (except models) not having a spring mechanism" with a column one duty rate of free. Because reclassification of the merchandise as indicated will result in the same rate of duty as claimed, the protest should be ALLOWED in full.

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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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