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HQ 955095


November 30, 1993

CLA-2 CO:R:C:F 955095 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.80

Mr. Jerrold E. Anderson
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693

RE: Modification of New York Ruling Letter (NYRL) 887442; "Pumpkin McNugget;" Not Festive Article; Not GRI 3 Set

Dear Mr. Anderson:

In NYRL 887442, issued June 30, 1993, six separate plastic representations of the "Chicken McNugget" fast food product were classified. One of the sample items, identified as "Pumpkin McNugget," was classified in subheading 9505.90.60, HTSUSA, which provides for "Festive, carnival or other entertainment articles ...parts and accessories thereof: Other: Other." We have reviewed that ruling and, with respect to the "Pumpkin McNugget" article, have found it to be partially in error. The correct classification is as follows.

FACTS:

The sample at issue measures approximately 2-1/2 inches in height, and consists of two components, a plastic, creature-like representation of a "Chicken McNugget," and a two-piece, plastic jack-o'-lantern, into which the "Chicken McNugget" portion may be inserted. The jack-o'-lantern component is not capable of illumination.

ISSUE:

Whether the article is properly classified as a festive article in subheading 9505.90.60, HTSUSA; as a toy representing a non-human creature in subheading 9503.49.0020, HTSUSA; as an
other toy not incorporating a motor or spring mechanism in subheading 9503.90.60, HTSUSA; or as other toys put up in sets in subheading 9503.70.80, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. The Explanatory Notes (ENs) 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 GRIs.

In NYRL 887442, Customs found that the two components of the "Pumpkin McNugget" were classifiable in separate headings (i.e., 9503 and 9505), that they comprised a set, and that neither component provided the whole article with its essential character. In accordance with GRI 3(c), the set was classified under the heading which occurs last in numerical order, i.e., heading 9505, HTSUSA. In classifying traditional festive articles for Halloween, however, it is Customs position that only those jack-o'-lanterns which: a) are of a pumpkin shape or form, and b) are capable of illumination, qualify as festive articles. See Headquarters Ruling Letter 951897, issued August 26, 1992. Since this jack-o'-lantern component is not capable of illumination, we must find the tariff provision which properly describes the components and the entire article.

Heading 9503, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicates that a toy is an article designed for the amusement of children or adults. It is apparent that each component of the "Pumpkin McNugget" is designed for amusement. At the four digit level of the tariff schedule, each component is classified in heading 9503, and no reference to GRI 3 is necessary.

An initial look at the six digit level, indicates that separate subheadings describe each portion, i.e., subheading 9503.49, HTSUSA, for the "McNugget" component, and subheading 9503.90, HTSUSA, for the "Pumpkin" portion. Again, neither item provides the article with its essential character. However, subheading 9503.70, HTSUSA, which provides for "Other toys, put up in sets or outfits, and parts and accessories thereof," is the six digit subheading which covers both of the complementary toys in the retail package.

HOLDING:

The article identified as "Pumpkin McNugget" is classified in subheading 9503.70.80, HTSUSA, the provision for "Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other." The applicable duty rate is 6.8 percent ad valorem.

This notice should be considered a modification of NYRL 887442 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 887442 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 887442 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director

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