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HQ 962271




January 10, 2000

CLA-2 RR:CR:GC 962271 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9103.10.40

Mr. Mickey Novak
Innovative Time Corporation
5858 Edison Place
Carlsbad, California 92008

RE: Raggedy Ann & Andy Clock; Midwest of Cannon Falls, Inc. v. United States

Dear Mr. Novak:

This is in response to your letter of October 7, 1998, in which you request reconsideration of New York Ruling Letter (NY) D81471, issued on September 23, 1998, under the Harmonized Tariff Schedule of the United States (HTSUS), by the Customs National Commodity Specialist Division, on a Raggedy Ann and Andy Clock. We regret the delay.

FACTS:

The Raggedy Ann & Andy Figurine Clock, model # SNOP04, is a polyresin clock which is part of the Snowden series. This item is a three-dimensional representation of Raggedy Ann and Andy, dressed in red, green and white clothing, seated back to back. The clock, measuring about 25mm in diameter is inserted into a heart shape which is held by Raggedy Ann. Raggedy Andy is holding a heart bearing the legend “You’re In My Heart.” The year 1998 is indicated on a small heart at the base of the article between the two figures.

You state that the clock is “sold and advertised for sale during a specific holiday season” and you imply that that season is the Valentine’s Day holiday.

ISSUE:

Whether the Raggedy Ann & Andy Figurine Clock, is classified in heading 9505, HTSUS, as a festive article, or elsewhere.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The Raggedy Ann & Andy Figurine Clock consists of two main components, the battery operated clock and the polyresin figures of Raggedy Ann and Andy. The polyresin figurine imported without the clock would be classified in Chapter 39 as an article of plastics. The clock imported without the figurine would be classified in Chapter 91, HTSUS, in the provisions for clocks and watches. Therefore, the articles are not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, “When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: ... when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “... composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

The EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this instance, the clock appears to provide the essential character of the composite good in terms of value and role in relation to the use of the goods. The Raggedy Ann & Andy figurines provide a base or holder that serves a secondary function of attractively displaying the clock. Because the clock component supplies the essential character of the good, the classification of the clock will govern the classification of the whole good.

Since the component which provides the essential character is a clock, we look to chapter 91, HTSUS, which covers “Clocks and Watches and Parts Thereof.” Heading 9103, HTSUS, provides for “Clocks with watch movements.”

It is argued that certain functional articles have been reclassified by Customs as festive articles in heading 9505, HTSUS, because they were associated with and used on a particular holiday and that a similar result should occur with respect to this clock. You further state that “it is our position that the enclosed sample [the clock] fits within the purview of all of the above cited rulings, decisions and publications and is therefore classifiable under the provision for Articles for Christmas festivities and parts and accessories thereof... Other: Of plastics...Other" in subheading 9505.10.4020, HTSUS.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for festivities other than Christmas are provided for in subheading 9505.90.60, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:

1. Is not predominately 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 upon a review of the articles subject to the Midwest decision, 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 that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

Customs views the Raggedy Ann & Andy Figurine Clock as principally a gift item, not really used in the celebration of Valentine’s Day or any other specific holiday. Given the written statements on the article, it functions as a gift and would be given by one person to another as a token of affection. It would not be used to decorate the home, a standard employed by the trial court in Midwest, but, rather, would be typically put on a desk, bookcase, or kitchen shelf where knick-knacks would be kept or a clock would be desirable. Once this article is presented as a gift, it would not be given again, in that it would have personal sentiment attached, and it is improbable that the article would be put away after any specific holiday and brought out again the next year. The clock works by batteries and runs continually, so it is likely that the article would be retained at least until the battery ceased to function. Then the battery could be replaced.

In this respect, the Raggedy Ann & Andy Figurine Clock, while decorative, is not a decoration. It is used neither for celebration nor entertainment on a holiday, in contrast to, for example, Easter Eggs, Jack-O’-Lanterns, or Christmas Stockings. Moreover, it is not associated with a particular holiday in the sense that the heart is a ubiquitous symbol, sometimes found on lockets, on playing cards, or providing the shape for a picture frame, to name a few instances. Moreover, the Raggedy Ann and Andy characters have been staple toy and doll images for many decades and it is claimed that the first creation of the Raggedy Ann doll between 1905 and 1910 had a red heart on the doll’s chest and the legend “I Love You” written on the front of the doll. These elements are irrespective of the recognized holidays of Valentine’s Day or Christmas. We would not dispute that more of these articles may be stocked and sold around Valentine’s Day than at other times of the year. However, the purchasing of the Raggedy Ann & Andy Figurine Clock does not mean that it falls into the class of seasonal festive merchandise. In these and other ways, the Raggedy Ann & Andy Figurine Clock is quite unlike goods falling into the class of festive articles. The Raggedy Ann & Andy Figurine Clock by contrast, would not necessarily be found in the home, but would likely appear in places where there is no hint of a celebration of Valentine’s Day.

The article also fails to meet several of the Carborundum standards:

As to physical characteristics, the fact that the face of the clock bears the legend “I Love You” does not turn a clock into a Valentine’s Day or Christmas clock, whatever that would be. The heart shapes incorporated into the base of the clock have Valentine’s Day associations, but this clock base with hearts has no practical limitations to use in and around those holidays.

The expectation of the ultimate purchaser would be to give a sentimental gift, the same expectation that would apply to a box of chocolates or a dozen red roses. This Raggedy Ann & Andy Figurine Clock, therefore, would serve the same function as a sentimental gift given for a birthday or anniversary commemoration, or just a “thinking of you” occasion which would occur at random times throughout the year.

The channels of trade would apparently be in Target stores. However, goods of this kind would typically be in gift shops along with knick-knacks, not particularized to Christmas or Valentine’s Day merchandise.

The environment of the sale is not apparent on its face; however, Customs does not dispute information provided by the importer that the article would be “sold and advertised for sale during a specific holiday season,” even though that season is not identified.

As to the use in the same manner as merchandise that defines the class, this article is not used in the same manner of merchandise that defines the class, because it would likely stay out all year and would not be put away and displayed for seasonal/holiday decoration; it does not decorate; it or articles similar to it are plausibly sold and used all year around, not just during a particular holiday celebration, distinguishing them from true articles belonging in the class of festive goods.

The economic practicality of using the import in a manner consistent with the class does not seem to be a relevant consideration in this case. Customs disagrees that the product is so designed and used as to be suitable for sale only in connection with the holiday of Christmas or Valentine’s Day. We recognize no calendar-based limitations for “affairs of the heart” and understand that sentimental and affectionate gift-giving takes place nearly every day of the year.

As to recognition in the trade of this use [as a festive article], stores may well claim that these particular items will be sold during the 1998 holiday season; however, sale at one time of year does not preclude sale or use at another time of year, or indiscriminately throughout the year. In addition, clocks embedded in decorative figurines, and similar objects which form a class to which the instant merchandise belongs, are recognized by consumers as being available and used throughout the year.

Because the Raggedy Ann & Andy Figurine Clock is not part of the class of festive articles, it is ineligible for classification in heading 9505, HTSUS, and is properly classified in subheading 9103.10.40, HTSUS, which provides for clocks with watch movements, electrically operated, other, having no jewels or only one jewel in the movement.

HOLDING:

NY D81471 is affirmed.

Sincerely,


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