CLA-2 RR:TC:FC 960136 MMC
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,
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. 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
Division