CLA-2 CO:R:C:F 955529 GGD
District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-93-100356, filed November 1, 1993, concerning the
classification of articles identified as a hanging witch, a
shrieking bat, and a shrieking spider.
Dear Sir:
This is a decision on a protest timely filed on November 1,
1993, against your decision in the classification and liquidation
of an entry in September 1993, of hanging witches, shrieking
bats, and shrieking spiders.
FACTS:
You classified the hanging witches under subheading
9502.10.8000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for "Dolls representing only
human beings and parts and accessories thereof: Dolls, whether or
not dressed: Other: Other: Other," with an applicable duty rate
of 12 percent ad valorem. You classified the shrieking bats and
shrieking spiders under subheading 9503.49.0040, HTSUSA, the
provision for "Other toys...and accessories thereof: Toys
representing animals or non-human creatures (for example, robots
and monsters) and parts and accessories thereof: Other, Toys
having a spring mechanism: Other," with an applicable duty rate
of 6.8 percent ad valorem.
Protestant claims that both articles should be classified
under subheading 9505.90.6090, HTSUSA, as festive articles. The
applicable duty rate for the claimed provision is 3.1 percent ad
valorem.
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The hanging witch, identified by item no. HW-4, is comprised
essentially of plastic and measures approximately 24 inches in
height (from the tip of the hat to the feet). The figure wears a
fabric dress and hat, and straddles a broom measuring
approximately 31 inches in length. The broom's bristles are
comprised of sisal or hemp, and the broomstick is plastic. There
is a plastic cord for suspending the item. The figure contains
an electronic system powered by two "AA" batteries. After the
switch has been turned on, hand clapping activates the system.
The figure then moves, its eyes light up, and it makes ghostly
sounds.
The shrieking bat, identified by item no. SB-12, is dome-
shaped with wings, is comprised essentially of plastic and
measures approximately 3-1/2 inches in height. There is a
plastic cord for suspending the article, which contains an
electronic sound system, powered by two "AA" batteries. When the
switch is turned on, noise activates the item, which shakes and
makes eerie sounds.
The shrieking spider, identified by item no. SS-12, is dome
shaped with eight bendable, wire and textile legs. The article
is essentially plastic and measures approximately 3-1/2 inches in
height. The shrieking spider also has a plastic cord to suspend
it, and an electronic, battery-powered sound system. When turned
on, the item is sound activated, making spooky noises and
movements.
ISSUE:
Whether or not the items are classified as festive articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). 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 GRIs may then
be applied. The Explanatory Notes (ENs) 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 GRIs.
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Heading 9505, HTSUSA, 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 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.
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 item is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
We consider the subject articles to be made of non-durable
material (since they are not designed for sustained wear and
tear, nor are they purchased because of their extreme worth or
value). The items are primarily decorative in function, although
the witch figure may be manipulated and is apt to provide some
degree of amusement.
Upon examination of the third criterion, however, witches,
bats, and spiders are not traditionally associated or used with a
particular festival. They are not the same types of articles
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cited in the ENs to 9505, as examples of traditional, festive
articles, nor do they particularly relate to Halloween. Although
frightening and/or repulsive to some humans, bats and spiders are
merely flying mammals and arachnids, respectively. Witches are
often the subject of mythology, history, plays, movies, and
cartoons. None of the three items bears a traditional
significance to a festival or holiday. In light of the above,
the items are not classified as festive articles under heading
9505, HTSUSA, and must be classified elsewhere.
The protestant cites certain Headquarters Ruling Letters
(HRLs) - each issued several years prior to the subject case - in
which a choir boy display figure and scarecrow figures were
classified in heading 9505, HTSUSA. While use of the HRLs to
support protestant's claim is understandable, the findings
contained therein no longer reflect Customs position regarding
the classification of festive articles. Appropriate action is
currently being taken to revoke or modify the rulings.
With respect to the hanging witch, heading 9502, HTSUSA,
provides for "Dolls representing only human beings and parts and
accessories thereof." The ENs to heading 9502 indicate 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.
In HRL 952821, issued March 3, 1993, this office held that
figures of a witch and a vampire were classified not as festive
articles in heading 9505, HTSUSA, but as dolls in heading 9502.
We noted that, although the nose, chin, or teeth of such figures
might be bigger/longer than the usual human feature counterparts,
and although a figure might be widely recognized as a non-human
creature in popular culture, these embellishments and cultural
perceptions did not render the figures non-human creatures for
classification purposes. See HRL 950698, issued March 20, 1992.
The hanging witch is thus classified as a doll in subheading
9502.10.8000.
With regard to both the shrieking bat and shrieking spider,
heading 9503, HTSUSA, provides for "Other toys...and accessories
thereof." The notes to chapter 95 state that the chapter covers
toys of all kinds, whether designed for the amusement of children
or adults. The EN to heading 9503 indicates that the heading
covers toys representing non-human creatures, and that many of
the toys are mechanically or electrically operated. It is clear
that heading 9503 accurately describes the shrieking bat and
shrieking spider.
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HOLDING:
The hanging witch, item no. HW-4, is classified in
subheading 9502.10.8000, HTSUSA, the provision for "Dolls
representing only human beings and parts and accessories thereof:
Dolls, whether or not dressed: Other: Other: Other." The
applicable duty rate is 12 percent ad valorem.
The shrieking bat and shrieking spider, item nos. SB-12 and
SS-12, respectively, are classified in subheading 9503.49.0020,
HTSUSA, the provision for "Other toys...and accessories thereof:
Toys representing animals or non-human creatures (for example,
robots and monsters) and parts and accessories thereof: Other,
Toys not having a spring mechanism: Other." The applicable duty
rate is 6.8 percent ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
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 the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the 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, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division