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HQ 088221


May 30, 1991

CLA-2 CO:R:C:F 088221 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020; 9503.90.6000

District Director of Customs
Federal Building, Room 198
N.W. Broadway & Glisan Sts.
Portland, Oregon 97209

RE: Protest No. 2904-9-000142; Novelty Items; Other Toys of Heading 9503; Not Festive, Carnival or Other Entertainment Articles of Heading 9505.

Dear Sir:

This is our decision regarding Application for Further Review of Protest No. 2904-9-000142, filed November 27, 1989, against your decision in the classification of various novelty items entered on June 30, 1989, and liquidated on November 13, 1989.

FACTS:

The merchandise at issue consists of four novelty items: the "Jumping Hairy Bat," the "Jumping Hairy Spider," the "Crazy Cleaver," and the "Giant Glasses." Pictures of the merchandise were forwarded for our examination.

The "Jumping Hairy Bat" and the "Jumping Hairy Spider" consist of a small, furry bat or spider figure, each having a long, hollow tube extending outward from its underside. Attached to the end of the tube is a bulb filled with air. When the bulb is compressed, air shoots through the tube causing the bat or spider figure to leap forward.

The "Crazy Cleaver" consists of a flimsy cleaver-type article. Rather than being straight in the center, it has a half circle cut into the cleaver allowing it to be placed over the wearer's head. When this is done, it gives the appearance of a cleaver going through the head.

The "Giant Glasses" are best described as oversized sunglasses.

The "Jumping Hairy Bat" and the "Jumping Hairy Spider" were liquidated in subheading 9503.49.0020, HTSUSA, which provides for other toys, toys representing animals or non-human creatures: other: not having a spring mechanism: other. The "Crazy Cleaver" and the "Giant Glasses" were liquidated in subheading 9503.90.6000, HTSUSA, which provides for other toys: other: other: other toys (except models), not having a spring mechanism.

The protestant claims that the subject merchandise is more properly classifiable in subheading 9505.90.6000, HTSUSA, which provides for festive, carnival or other entertainment articles: other: other. He maintains that the merchandise is used for decorating or as parts of costumes during Halloween.

ISSUE:

Whether the various novelty items are classifiable as festive articles in heading 9505, HTSUSA, and, if not, what classification is appropriate.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles...; parts and accessories thereof." The Explanatory Notes, which represent the official interpretation of the tariff at the international level, offer guidance in understanding the scope of the headings. The Explanatory Note to heading 9505 indicates that the heading includes:

(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.

(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches..., and paper hats. * * *

Fancy dress is defined in Mary Brooks Picken's, The Fashion Dictionary at 134 (3rd ed. 1973) as a "costume representing a nation, class, calling etc., as worn to a costume ball or masquerade party." In our opinion, none of novelty items at issue qualifies as an article of fancy dress. Nothing about the items or their packaging suggests that they are worn as parts of costumes. Rather, it appears that the items are designed to be worn any time under a wide variety of circumstances.

Items classifiable as festive articles in heading 9505 tend to serve no other function than decoration. (See Headquarters Ruling Letter 085276 of November 3, 1989.) The novelty items at issue are not merely decorative but function primarily as toys. Moreover, none of the items is traditionally associated with any particular festival. Admittedly, spiders and bats have a strong market presence during Halloween. However, toys representing insects and other creatures can be found year-round.

Heading 9503, HTSUSA, provides, in pertinent part, for "[o]ther toys." The General Explanatory Note to Chapter 95 indicates that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." As the items at issue provide frivolous amusement to both children and adults alike, they are classifiable in Chapter 95 as other toys.

HOLDING:

The "Jumping Hairy Bat" and the "Jumping Hairy Spider" are classifiable in subheading 9503.49.0020, HTSUSA, which provides for other toys, toys representing animals or non-human creatures: other: not having a spring mechanism: other. The applicable rate of duty is 6.8 percent ad valorem.

The "Giant Glasses" and the "Crazy Cleaver" are classifiable in subheading 9503.90.6000, HTSUSA, which provides for other toys: other: other: other toys (except models), not having a spring mechanism. The applicable rate of duty is 3.1 percent ad valorem.

The protest should be denied in full. A copy of this decision along with the Form 19 Notice of Action should be forwarded to the protestant.

Sincerely,

John Durant, Director

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