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HQ 962054




January 14, 2000

CLA-2 RR:CR:GC 962054 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.90

Port Director of Customs
110 S. 4th St.
Minneapolis, MN 55401

RE: Protest 3501-1997-100071; Stuffed Holiday Textile Pins and Burlap Bags; Other Made Up Clothing Accessories; Parts of Garments or of Clothing Accessories, Other than those of Heading 6212: Accessories: Other: Of Man Made Fibers.

Dear Port Director:

This is our decision on Protest 3501-1997-100071, filed against your classification of stuffed animal and figure textile pins and burlap bags. The entries under protest were liquidated on February 21, 1997, and this protest timely filed on May 19, 1997.

FACTS:

The merchandise consists of 8 styles of stuffed textile animals and figures and burlap bags. The items are: Baby Santa (style D-1822), Stripped Santa (style D-1834), 3" Raindeer (style D1825), Button Bear (style D-1826), X-mas Dog (style D-1831), 3" Cat (style D-1818), Country Snowman (style D-1815) and Button Angel (style D-1829). The stuffed figures measure approximately 3 inches in height. The Baby Santa and the X-mas Dog have a red "Santa" hat. The Stripped Santa has a "Santa" hat on and a red stripe overall costume. The Button Bear and the Button Angel have different color buttons attached to their bodies. The Button Bear is light brown and the Button Angel has a red dress with its arms extended to the sides and a pair of wings in the back. The Country Snowman has a green floppy sun hat and a red and white checkered scarf. The 3" Raindeer has green "arms and legs," yellow "hands and toes," green nose and antlers and its midsection has a big red and white checkered pattern. The 3" Cat has a big red bow tie and green checkered dress. All the figures have safety pins attached to their back. The red and green burlap bags are 3½" x 3" with drawstring. The bags were imported in greater quantity and separate from the stuffed figures and are not at issue in this ruling. See photos below.

The entry was liquidated under a provision for other made up clothing accessories under subheading 6217.10.90 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the protestant claims that the Baby Santa is classifiable as dolls, representing human beings under subheading 9502.10.00, HTSUS, that the Stripped Santa is classifiable as articles for Christmas festivities under subheading 9505.10.50, HTSUS, and as toys representing animals or non-human creatures, stuffed toys for the balance of the items. Alternatively, the protestant requests classification for all the items under either subheading 9505.10.25, HTSUS, as other Christmas ornaments, 7117.90.90, HTSUS, as other imitation jewelry or 6307.90.99, HTSUS, as other made up articles.

The 1997 HTSUS provisions under consideration are as follows:

6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: 6217.10 Accessories:
6217.10.90 Other

6307 Other made up articles, including dress patterns: 6307.90 Other:
6307.90.99 Other

7117 Imitation jewelry:
7117.90 Other:
Other:
Other:
7117.90.90 Other

9502 Dolls representing only human beings and parts and accessories thereof: 9502.10.00 Dolls, whether or not dressed

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: 9503.41.00 Stuffed toys and parts and accessories thereof

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: 9505.10 Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments:
Other:
9505.10.25 Other
Other:
9505.10.50 Other

ISSUE:

Whether the stuffed textile characters are classifiable as other made up clothing accessories under subheading 6217.10.90, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRI 2 through 6.

The stuffed textile animals and figures have pins in the back, and are thus composite goods. There is no dispute that the essential character of the merchandise is imparted by the stuffed textile animals and figures and the merchandise will be so classified. Section XI, note 1(t), HTSUS, states that the Section does not cover articles of Chapter 95. Accordingly, if the animals and figures are described by headings 9502, 9503 or 9505, they may not be classified in heading 6217.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The Baby Santa Character, Style D-1822

The protestant claims that the baby Santa should be classified under subheading 9502.10.00, HTSUS. EN 95.02, HTSUS, states that

[t]he 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.

Dolls are usually made of rubber, plastics, textile materials, wax, ceramics, wood, paperboard, papier maché or combinations of these materials. They may be jointed and contain mechanisms which permit limb, head or eye movements as well as reproductions of the human voice, etc. They may also be dressed.

The classification of dolls have been the subject of numerous rulings and court decisions. In HQ 962336, dated November 3, 1999, Customs classified "Action Flats" sports figures under subheading 3926.40.00, HTSUS. This ruling cited Hasbro Industries, Inc. v. The United States 7 Fed. Cir. (T) 110, 879 F.2d 838 (1989), which affirmed the Court of International Trade (CIT) decision (12 CIT 983, 703 F. Supp. 941 (1988)) that held that "G.I. Joe Action Figures" were classifiable as dolls under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS. The ruling states "[t]he 'G.I. Joe Action Figures' had the appearance of human beings and were described as '.... noticeably lifelike and constructed in a manner which permits an impressive range of movement' (7 Fed. Cir. (T) at 111). They were packaged singly in a large plastic blister mounted on a large card with biographical information for each figure, and came with their own 'specialized accessories.' "

The ruling acknowledged other decisions which have held that the definition of the term "doll" is broad. However, the court has not accepted "a blanket rule that every decorative article with some doll-like feature is simply a doll." See HQ 962336, citing House of Lloyd, Inc. v. United States, 13 CIT 414, 416 (1989). Classification of articles as dolls depends on the circumstances in each individual case. See HQ 962336, citing Customs Bulletin, Vol. 18, 1994, at 902. In HQ 082001, dated February 13, 1990, which the protestant cites, Customs held that "Starting Lineup" figures, "finely detailed, authentic reproductions of well known sports personalities" were dolls of subheading 9502.10.40, HTSUS. The figures were fully three-dimensional and articulated, to the extent that the arms, heads and waists of each player could be rotated to simulate live action movement. The articles in this case are not articulated and their arms cannot be rotated to simulate live action movement. They are not noticeably lifelike like the "Starting Lineup" figures. We thus find that the Stripped Santa figure and the other stuffed characters are not described by heading 9502, HTSUS.

The Striped Santa Character, Style D -1834

The protestant claims that the striped Santa character should be classified under subheading 9505.10.50, HTSUS. EN 95.05 states that heading 9505 covers: (A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material.

In Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) ("Midwest"), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It provided new guidelines for the classification of "festive articles." In general, merchandise is classifiable in heading 9505, HTSUS, as a "festive article" when the article, as a whole:

1. Is not predominantly of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

3. Is associated with or used on a particular holiday.

Based on a review of the Midwest articles, Customs is of the opinion that the court has included within the scope of the class "festive articles" decorative household articles which are representations of an accepted symbol for a recognized holiday and utilitarian/functional articles if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 2/3, dated January 21, 1998. Midwest did not include within the scope of heading 9505, HTSUS, articles of personal adornment. In HQ 960401, dated July 16,1997, Customs determined that a teddy bear pin was used as personal embellishment as opposed to adornment or "decoration" for the home. Similarly, we find that the subject stripped Santa are not described by heading 9505 because they are not articles principally used to decorate the house or tree during the Christmas holiday season. They will be principally used as articles of personal adjustment. The subject merchandise is therefore not described by heading 9505, HTSUS.

The 3" Raindeer, Style D1825, Button Bear, Style D-1826, X-mas Dog, Style D-1831, 3" Cat, Style D-1818, Country Snowman, Style D-1815 and Button Angel, Style D-1829

The protestant claims that the rest of the articles are classifiable under either subheading 9505.10.25, HTSUS, as articles for Christmas festivities and parts and accessories thereof: Christmas ornaments, or 9503.41.00, HTSUS, as other toys. As with the baby Santa and the stripped Santa, we do not find that the rest of the stuffed pins are described by heading 9505, HTSUS, since these are articles of personal adornment.

The protestant cites NY 811437, dated June 14, 1995, to support its claim that the stuffed animals and figures are classifiable as other toys under subheading 9503.41.00, HTSUS. In NY 811437, Customs classified a stuffed bear bar pin that measured approximately 3¼" in height. In that ruling Customs determined that the pin provided comical or whimsical appearance and that it was a source of enjoyment, humorous diversion and frivolous entertainment. See also NY A83639, dated May 15, 1990, for a similar conclusion.

Customs have generally held that stuffed pins are not toys but articles of personal adorment. We note HQ 960401, dated July 16, 1997, citing HQ 087960, dated January 4, 1991, which held that among pins and buttons only comic buttons with humorous words or sayings are properly classified as "other toys" of heading 9503, Customs found that "although [a] teddy pin may provide amusement, it is not of comical nature nor does it feature humorous words or sayings...." Citing United States v. Topps Chewing Gum, Inc., 440 F.2d 1384, 1385 (C.C.P.A.), NY 811437 states as follows:
the court concluded that certain metal buttons designed to be worn on a shirt or sweater and on which were written humorous sayings and/or designs were classifiable as toys. In reaching this conclusion, the court reasoned that "if the purpose of an object is to give the same kind of enjoyment as playthings give, its purpose is amusement, whether the object is to be manually manipulated, used in a game, or, as here, worn."

The Court in Topps Chewing Gum, Inc. looked at the design of the pins to see whether they had written humorous sayings and/or designs to be classifiable as toys. The subject pins do not contain humorous words or sayings. Accordingly, we find that the merchandise is not a comical button of heading 9503, HTSUS. The subject pins are clothing accessories intended to be worn on the person.

Alternatively, the protestant claims that the merchandise is classifiable under either subheading 6307.90.99, HTSUS, as other made up articles, or 7117.90.90, HTSUS, as imitation jewelry. Note 2 (a) to Chapter 63, states that subchapter 1 does not cover goods of Chapters 56 to 62. Also Note 3 (g) to Chapter 71 states that Chapter 71 does not cover goods of Section XI (textiles and textile articles).

In HQ 960401, Customs held that teddy bear pins are classifiable under subheading 6217.10.90, HTSUS. It determined that "there is nothing contained [in the ENs] which would preclude the subject teddy bear pin from classification under Heading 6217." Pursuant to GRI 3(b), Customs found that the essential character of the teddy bear pins was imparted by the textile component. The textile component predominated in terms of adornment, weight, and value. Similarly, in this instance we find that the subject stuffed figures are textile accessories classifiable under subheading 6217.10.90, HTSUS. The merchandise is therefore precluded from classification in heading 6307 or 7117. See also 958167, dated August 30, 1995, for a similar conclusion.

HOLDING:

The Baby Santa (style D-1822), Stripped Santa (style D-1834), 3" Raindeer (style D1825), Button Bear (style D-1826), X-mas Dog (style D-1831), 3" Cat (style D-1818), Country Snowman (style D-1815) and Button Angel (style D-1829) are classifiable under subheading 6217.10.90, HTSUS, as Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other.

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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