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HQ 954999





June 24, 1994

CLA-2 CO:R:C:F 954999 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.60

District Director
U.S. Customs Service
110 South 4th Street - Rm 154
Minneapolis, MN 55401

RE: Decision o n application for further review of Protest No. 3501-93-100332, filed July 15, 1993; Cake Decorations depicting Jasmine on Rajah the Tiger, Genie with Aladdin on Carpet; Heading 9503, other toys; Not 3926 articles of plastics; Not 9505 festive, carnival or other entertainment articles; HRLs 954616, 954996

Dear Sir:

This is a decision on a protest filed July 15, 1993 against your decision in the classification of merchandise liquidated on April 16, 1993.

FACTS:

The merchandise at issue in this protest, manufactured in China, consists of items intended to be sold to the bakery industry as cake decorations. However, an examination of the figures at issue, depicting Jasmine on Rajah the Tiger (Item #1029) and Genie with Aladdin on Magic Carpet (Item #1020) reveals that the figures are composed of polyvinyl chloride (PVC) and are of sufficient quality to be retained by a child and subsequently used for amusement. On March 29, 1994 we had the opportunity to meet with Mr. Murphy, the President of DecoPac, and counsel. This meeting, as well as counsel's submission of March 30, 1994, provided us with further detail regarding the condition and packaging of the merchandise when imported and sold to the bakeries.

The figure depicting Jasmine on Rajah the Tiger is one article, evidently from a single mold. It is not comprised of individual figures which independently could serve as a complete doll or toy. With regard to the figures depicting Genie and Aladdin on the Magic Carpet, although Aladdin on his Magic Carpet may not be derived from a single mold, it similarly is comprised of figures and an object which are incomplete in their own right.

Additionally, it is our understanding with regard to the Genie and Aladdin figures that the two individually wrapped figures, each in a clear, polyethylene bag, are placed inside another clear, polyethylene bag which is heat sealed. The product is imported in grosses (144 sets per package) pre-packaged as sets in food-grade polyethylene bags. Once imported, the gross shipments are packaged six to a box for resale to DecoPac's customers. The articles remain in the sealed polyethylene bag when placed in the six unit, exterior box which itself is designed to facilitate the sale and shipment of the sets. An instruction sheet for decorating the cake, as required by DecoPac's license agreements, and a sheet with six peel and stick warning labels, as required by the Consumer Product Safety Commission, are included within the exterior box.

Once the box of six sets of the merchandise arrives at the bakery, the baker will decorate and ice the cake consistent with DecoPac's instructions, but, in most cases, will not position the decorations on the cake. Rather, the retail consumer will purchase a decorated cake in a domed box with the PVC cake decorations still in the same food-grade polyethylene bag attached to or enclosed with the cake box. The sale of the decorated cake in this manner eliminates the likelihood that the decorations will shift or tip in transit and mar the iced cake prior to the birthday celebration.

The protestant entered the merchandise under subheading 9505.90.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as festive, carnival or other entertainment articles, other, other at a duty rate of 3.1 percent ad valorem.

You liquidated Genie and Aladdin under subheading 9502.10.40, HTSUSA, as dolls representing only human beings, other (than stuffed) at a duty rate of 12 percent ad valorem and Jasmine on Rajah under subheading 9503.49.0020, HTSUSA, as other toys, toys representing animals or non-human creatures, other (than stuffed) at a duty rate of 6.8 percent ad valorem.

The protestant submits that if the figures are not classified in subheading 9505.90.60, HTSUSA, they are classified, alternatively, in subheading 3926.40.00, HTSUSA, as other articles of plastics, statuettes and other ornamental articles.

ISSUE:

Whether the figures are classified within heading 9505 as festive, carnival or other entertainment articles; 9502 as dolls representing only human beings; 9503 as other toys; or 3926 as other articles of plastics; and whether the figures qualify as sets put up for retail sale.

LAW AND ANALYSIS:

The protest involves the same merchandise and the same parties that were the subject of Headquarters Ruling Letters (HRLs) 954996, issued April 15, 1994, and 954616, issued May 10, 1994. However, we note the following.

With regard to Jasmine on Rajah the Tiger, we reiterate that the figure, in its entirety, is one, complete article not comprised of figures complete or independent in their own right. In accordance with the decision reached in HRL 954996, supra, we believe the article is classifiable, in its entirety, pursuant to GRI 1, as a toy within heading 9503. Since this unique figure, as a whole, is not accurately described as a "toy representing an animal," because of the inclusion of Jasmine, it is classifiable, pursuant to GRI 1 in accordance with GRI 6, as an "other" toy in subheading 9503.90.60.

Similarly, with regard to Aladdin on the Magic Carpet, it is our position that the figure, in its entirety, is one, complete article classifiable as a toy within heading 9503. However, because the figures depicting Aladdin on the Magic Carpet as well as the Genie are packaged together, when classifying these articles we must consider the manner in which they are put up. In accordance with the decision reached in HRL 954616, supra, both Genie and Aladdin on the Magic Carpet, when packaged together and put up in this manner, are classifiable as a set put up for retail sale. As the Genie figure, individually, is classifiable within heading 9502 as a doll and the Aladdin on Carpet figure, individually, is classifiable within heading 9503 as a toy, we are directed by GRI 3(b) to classify both articles comprising the set by the figure which gives it its essential character. Because neither figure imparts essential character, we are directed by GRI 3(c) to classify the set within heading 9503, the provision which occurs last as between headings 9502 and 9503. The applicable subheading for the figure depicting Aladdin on the Magic Carpet and, hence, for the entire set is 9503.90.60.

HOLDING:

The figures depicting Jasmine on Rajah the Tiger as well as Genie with Aladdin on the Magic Carpet, the latter qualifying as a set put up for retail sale, are classified in subheading 9503.90.60, HTSUSA, as "Other toys...: Other: Other: Other toys (except models), not having a spring mechanism." The applicable rate of duty is 6.8 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and a partial allowance. A copy of this decision with the Form 19 should be sent 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, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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