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HQ 957804




April 26, 1996

CLA-2 RR:TC:FC 957804K

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020; 9503.90.6000; 9502.10.4000(1992)

Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607

RE: Application For Further Review of Protest No. 3901-93-101757; Plastic Novelty Figures Designed For Cap or Lid Closures

Dear Port Director:

The following is our response to the referral by your office, dated March 24, 1995, of the request for further review of the above-referenced protest.

FACTS:

The protestant states that all of the fifteen consumption entries covering the imported plastic articles were liquidated on May 21, 1993, under the provision for other toys (except models), not having a spring mechanism, in subheading 9503.90.6000, Harmonized Tariff Schedule of the Unites States (HTSUS) (1992), with duty at the 1992 general rate of 6.8 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on August 19, 1993. For the articles listed in the protest as "Christmas", the protestant requested reliquidation of the entries under the provision for other Christmas ornaments in subheading 9505.10.2500, HTSUS, with duty at the 1992 general rate of 5 percent ad valorem but free of duty as Christmas ornaments other than ornaments of glass or wood, in subheading 9902.95.05, HTSUS. In the alternative, the protestant requested that the entries should be reliquidated for the articles listed as "Christmas" under the provision for other festive articles in subheading 9505.90.6000, with duty at the 1992 general rate of 3.1 percent ad valorem and free of duty if valued not over 5 cents per unit as provided for, in subheading 9902.71.13, HTSUS. For the articles listed in the protest as "Halloween", "Valentines", and "Easter", the protestant requested reliquidation of the entries covering these articles, under the provisions for other festive articles, in subheadings 9505.90.6000, with duty at the 1992 general rate of 3.1 percent ad valorem and free of duty if valued not over 5 cents per unit as provided for in subheading 9902.71.13, HTSUS. Also in the alternative, the protestant suggests that all of the articles are classified as other plastic stoppers, lids, caps, and other closures, in subheading 3923.50.0000, HTSUS, with duty at the 1992 general rate of 5.3 percent ad valorem.

Approximately 18 samples were submitted with the protest. The height of the samples range from 2« to 4« inches, and approximately 2 inches in diameter. The articles are novelty figures representing a variety of different creatures such as a ghost, a scarecrow, a snowman, a Dracula and a rabbit. Some depict a pumpkin or M&M candy figures. Some of the articles have a string attached and some do not. All of the figures share the common attribute of either a threaded molded base or a cap designed so that they can fit snugly into a container of some sort as a cap or stopper. On some of the articles, the threaded molded section can be removed from the figures. Presumedly, the articles may be used as closures of containers in the packaging of candy or other merchandise and may also be used as toys.

ISSUE:

The issue is whether the plastic articles described above are classifiable as other Christmas ornaments and other festive articles, in heading 9505, HTSUS.

LAW AND ANALYSIS:

The protestant claims that the articles are classified in heading 9505 which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof. Subheading 9505.10.2500, HTSUS (1992), provides for Christmas ornaments other than of glass or wood. Some of the articles have a hole with a string attached which indicates that they may be used as Christmas tree ornaments. Subheading 9505.90.6000, HTSUS (1992), provides for other festive articles. However, the articles are designed with either a molded base or a cap so that they can be attached to other articles such as containers or other parts of toys. Normally, Christmas ornaments and festive articles are not utilitarian articles designed as closures for the conveyance or packing of goods.

Heading 3923, HTSUS, (1992) provides for articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics. Subheading 3923.50.0000, HTSUS, provides for plastic stoppers, lids, caps and other closures. The design of the articles with either a molded base or a cap indicates that they may be used as closures for containers for the conveyance or packing of goods.

Heading 9502, HTSUS (1992) covers dolls representing only human beings and parts and accessories thereof and subheading 9502.10.4000, HTSUS (1992), provides for other dolls, representing only human beings and parts and accessories thereof, whether or not dressed, not stuffed, and not over 33 cm in height. Heading 9503, HTSUS (1992), covers other toys...parts and accessories thereof and subheading 9503.49.0020, HTSUS, provides for other toys representing animals or non-human creatures, not stuffed, and not having a spring mechanism. Some of the articles may be classified as dolls and the rest of the articles may be classified as toys.

It appears that the imported articles may have a dual purpose, for use as closures and as toys. Customs Headquarters Ruling Letter (HRL) dated April 26, 1993 (951309) concerned similar facts involving M & M novelty figures designed as lids for closures for containers containing candy, a utilitarian use, and as toys. In that case, Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), was cited in which the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." We noted in HRL 951309, that the merchandise had the appearance and play value of any toy, that it could be used for amusement without being used as a closure or stopper, that the primary value of the item is its play value, and that the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor. We concluded that the articles were classified as toys. We come to the same conclusion in this protest.

HOLDING:

The plastic novelty figures described above are classified as follows under the 1992 HTSUS.

1. The figures that are full-figured representations of animals or creatures, are classified as other toys representing animals or non-human creatures and parts and accessories thereof, not stuffed, not having a spring mechanism, in subheading 9503.49.0020, HTSUS.

2. The figures that possess less than a full-figured anatomical configuration, such as the pumpkin face, the yellow rabbit and the light brown scarecrow, are classified as other toys (except models), not having a spring mechanism, in subheading 9503.90.6000, HTSUS.

3. The figure depicting Dracula is considered a doll because it is a physical representation of a human being and is classified as other dolls representing only human beings and parts and accessories thereof, not stuffed, not over 33 cm in height, in subheading 9502.10.4000, HTSUS.

You are directed to deny the protest in full in accordance with this decision.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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