CLA-2 CO:R:C:F 952821 LPF
District Director
U.S. Customs Service
P.O. Box 619050
1205 Royal Lane
Dallas/Ft. Worth, TX 75261
RE: Internal Advice Request No. 64/92; Rocking Chair Santa Claus,
Hanging Witch, Hanging Vampire; Heading 9505, festive
article; Heading 9502, doll; HRL's 952520, 951422, 952249,
950698
Dear Sir:
This is in response to Internal Advice Request No. 64/92,
initiated by a letter dated September 2, 1992, submitted by DJS
International Services, Inc., P.O. Box 612785 Dallas/Ft. Worth
Airport, TX 75261, on behalf of Gemmy Industries Corporation.
The request regards the classification of a Rocking Chair Santa
Claus, Hanging Witch, and Hanging Vampire under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The articles at issue, which are imported from either China
or Taiwan, are as follows:
1. The Rocking Chair Santa Claus is a Santa Claus
figure approximately 2 feet in length sitting in a
wooden and plastic rocking chair. The figure's face,
hands, and torso are plastic, while its outfit, beard,
and moustache are textile. There is a compartment in
the bottom of the chair for batteries which power the
music module. A device within the article shifts
the article's weight causing the rocking chair to begin
rocking, and to continue moving in this manner.
2. The Hanging Witch is a figure of a witch
approximately 24 inches in length, designed to be
suspended from a point by a plastic string attached to
the back. When the battery is activated by sound or
touch, the eyes light up and the witch vibrates and
makes eerie sounds.
-2-
3. The Hanging Vampire is a figure of a male vampire
approximately 24 inches in length, designed to be
suspended from a point by a plastic string attached to
the back. When the battery is activated by sound or
touch, the vampire vibrates, its eyes light up, and it
makes eerie sounds.
ISSUE:
Whether the Santa Claus, witch and vampire figures are
classifiable in heading 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. 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....
* * *
-3-
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.
The Santa Claus, witch, and vampire figures are made of non-
durable material. Customs will consider these articles 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). Moreover, when examining
the articles, as a whole, it is evident that the Santa Claus
figure is traditionally associated or used with the particular
festival of Christmas.
We note that the instant articles are not animated display
figures, but are other types of figures or dolls.
Characteristically, animated display figures are constructed of
various materials and their torsos include a motor which when
plugged into an electrical socket, and switched on, causes the
figure's head, arms, etc. to move (usually, synchronously from
side to side).
Generally, figurines and dolls are not traditionally
associated or used with a particular festival; they are not
ejusdem generis with those articles cited in the EN's to 9505, as
exemplars of traditional, festive articles. However, Santa Claus
is a unique form that traditionally has been associated,
particularly and exclusively, with Christmas. Since the motif of
an article is not dispositive of its classification, only three
dimensional forms of Santa Claus, identifiable as such upon
importation, are classifiable within 9505 as festive articles.
-4-
The fact that the Santa Claus figure has a beard, moustache,
and fat belly and wears a fur-lined cap, oversized coat with
buckle, and boots, indicates that the article is identifiable
upon importation as Santa Claus. Also, the article is three
dimensional, because it is not designed or effective primarily as
a flat or surface composition, but rather is specifically
designed to give an illusion of depth or varying distances. See
Webster's Third New International Dictionary 2474 (1971). For
these reasons, the Santa Claus figure is classifiable, pursuant
to GRI 1, in 9505 as a festive article. See Headquarters Ruling
Letters (HRL's) 952520, issued October 22, 1992, and 951422,
issued November 25, 1992.
The Santa figure is classifiable within subheading 9505.10
which provides for articles for Christmas festivities. At the
eight digit subheading level, the Santa figure is not
classifiable in subheadings 9505.10.10, 9505.10.15 and 9505.10.25
which cover Christmas ornaments of glass, wood and other,
respectively. The Santa figure does not meet our criteria for
Christmas ornaments. See HRL 951422, supra.
Subheading 9505.10.40, covers other Christmas articles of
plastics, while subheading 9505.10.50, covers other Christmas
articles made of other materials. As the Santa figure is not
composed primarily of plastic, it is classifiable in subheading
9505.10.50.
In contrast, it is Customs' position, that the witch and
vampire figures are not traditionally associated or used with a
particular festival. Witches, vampires, ghosts and other scary
beings are not particularly related to Halloween since they often
appear in mythology, movies or cartoons of no significance to
Halloween. These articles are not ejusdem generis with articles
cited in the EN's to 9505, as exemplars of traditional, festive
articles. The articles must be classified elsewhere. See HRL
952249, issued October 30, 1992.
Heading 9502, HTSUSA, provides for dolls representing human
beings. 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. [Dolls] may be jointed and contain
mechanisms which permit limb, head or eye movements as well as
reproductions of the human voice, etc...."
-5-
Heading 9503 provides for other toys and reduced-size
("scale") models. The EN's to 9503 state that, inter alia, the
heading covers:
(A) All toys not included in headings 95.01 and 95.02.
Many of the toys of this heading are mechanically
or electrically operated.
These include:
(1) Toys representing animals or non-human
creatures even if possessing predominantly
human physical characteristics (e.g., angels,
robots, devils, monsters), including those
for use in marionette shows.
In the past, Customs has issued several decisions which
address the relationship between headings 9502 and 9503 in light
of the above Explanatory Notes. These decisions focus on the
fact that heading 9502 restricts its coverage to include dolls
representing only human beings.
The witch and vampire figures fit the description of "dolls
representing only human beings," as opposed to non-human
creatures. In this regard, we emphasize that neither figure
possesses non-human features, that is, body parts that do not
exist on human beings (e.g., halos, wings, horns, tails, etc.).
Although the nose, chin, or teeth of these figures may be bigger
and longer than seen on humans, these features are merely
embellishments or alterations of human physical attributes. This
does not mean the figures possess non-human features or body
parts which make the figures non-human.
We also note that Customs, in the past, has considered
whether a figure is widely recognized or established in popular
culture as a non-human creature, to be some indicia of that
figure's classification as a "non-human creature," as opposed to
a "doll." It is Customs position that this consideration (e.g.,
the figures' recognition in popular culture) does not compel us
to classify witches and vampires as non-human creatures. Rather,
they are classifiable as dolls. See HRL 950698, issued March 20,
1992.
For these reasons, the witch and vampire figures are
classifiable in heading 9502. The applicable subheading is
9502.10.8000.
-6-
HOLDING:
The Rocking Chair Santa Claus is classifiable in subheading
9505.10.5000, HTSUSA, as "Festive, carnival or other
entertainment articles,...Articles for Christmas festivities and
parts and accessories thereof: Other [than Christmas ornaments]:
Other." The general column one rate of duty is 5.8 percent ad
valorem.
The Hanging Witch and Hanging Vampire are classifiable in
subheading 9502.10.8000, HTSUSA, as "Dolls, representing only
human beings and parts and accessories thereof: Dolls, whether or
not dressed: Other: Other: Other." The general column one rate
of duty is 12 percent ad valorem.
You should advise the internal advice applicant of this
decision and forward them a copy.
Sincerely,
John Durant, Director
Commercial Rulings Division