HQ 952980: Decision on application for further review of Protest No. 2809-92-100810, filed April 30, 1992, concerning classification of wooden caroller and nutcracker dolls; Heading 9502, Dolls representing only human beings; Not 9505, Festive articles; HRL 952821, NYRL's 861953, 856996

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952980

                         March 18, 1993

CLA-2 CO:R:C:F 952980 LPF

CATEGORY: Classification

TARIFF NO.: 9502.10.40; 9502.10.80

District Director
U.S. Customs Service
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126

RE: Decision on application for further review of Protest No.    
    2809-92-100810, filed April 30, 1992, concerning
    classification of wooden caroller and nutcracker dolls;
    Heading 9502, Dolls representing only human beings; Not 9505,
    Festive articles; HRL 952821, NYRL's 861953, 856996

Dear Sir:

    This is a decision on a protest filed April 30, 1992, against
your decision in the classification of certain merchandise
liquidated on January 31, 1992.

FACTS:

    The articles at issue, imported from Hong Kong, are style
#25001, wooden carollers, and style #35143, a wooden nutcracker. 
The wooden caroller dolls are representations of Dicken's style
carollers, meaning Victorian, holiday carollers.  The figures are
attached to a wooden base.  Both the male and female characters
are under 33 cm in height, not counting the base, are holding
songbooks, and are wearing plaid scarves or mufflers.  The wooden
nutcracker doll is 34 cm in height, not counting the wooden base,
and resembles a soldier and a classic wooden nutcracker.

    The protestant entered the articles under subheading
9505.10.50, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as "Festive, carnival or other entertainment
articles...: Articles for Christmas festivities...: Other:
Other," at a duty rate of 5.8 percent ad valorem.

    You classified the articles under subheading 9502.10.40, as
"Dolls representing only human beings and parts and accessories
thereof: Dolls, whether or not dressed: Other: Not over 33 cm in
height," at a duty rate of 12 percent ad valorem.






                               -2-

ISSUE:

    Whether the caroller and nutcracker dolls 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.
     
     First, the articles are made of non-durable material. 
Customs will consider articles, such as the carollers and
nutcracker, 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 (as would be the case
with a decorative, yet costly, piece of art or crystal).  In
addition, the articles' primary function is decorative.

     However, when examining the articles, as a whole, it is
evident that the carollers and nutcrackers are not traditionally
associated or used with the particular festival of Christmas.
Generally, figurines and dolls are not traditionally associated
with the particular festival of Christmas; they are not ejusdem
generis with those articles cited in the EN's to 9505, as
exemplars of traditional, festive articles.  See Headquarters
Ruling Letter 952821, issued March 3, 1993.  It currently is our
position that the motif of these figures is not dispositive of
their classification nor transforms them into festive articles. 
See also New York Ruling Letters 861953, issued April 25, 1991
and 856996, issued November 2, 1990.

     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...."





                               -4-

     Because the articles resemble human beings and fit the
description of dolls, as referred to in the EN's, they are
classifiable, pursuant to GRI 1, within heading 9502.  As the
caroller dolls are 33 cm in height, while the nutcracker doll is
34 cm in height, the appropriate subheadings are 9502.10.40 and
9502.10.80, respectively.

HOLDING:

     The wooden caroller dolls are classifiable in subheading
9502.10.4000, HTSUSA, as "Dolls, representing only human beings
and parts and accessories thereof: Dolls, whether or not dressed:
Other: Not over 33 cm in height."  The general column one rate of
duty is 12 percent ad valorem.

     The wooden nutcracker doll is 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.

     Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full.  A copy of this decision with the Form
19 should be sent to the protestant.

                         
                                   Sincerely,


                                        
                                   John Durant, Director
                                   Commercial Rulings Division