HQ 955979 - Decision on Application for Further Review of Protest No. 2904-94-100014, filed February 2, 1994, concerning the classification of an article identified as a "strobie assortment," consisting of a toy bat and spider. - United States International Trade Commision Rulings

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HQ 955979

July 25, 1994

CLA-2 CO:R:C:F 955979 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director of Customs
511 N.W. Broadway Federal Building
Suite 198
Portland, Oregon 97209

RE: Decision on Application for Further Review of Protest No. 2904-94-100014, filed February 2, 1994, concerning the classification of an article identified as a "strobie assortment," consisting of a toy bat and spider.

Dear Sir:

This is a decision on a protest timely filed on February 2, 1994, against your decision in the classification and liquidation of an entry in November 1993, of a "strobie assortment" item.

FACTS:

You classified the "strobie assortment" article under subheading 9503.49.00, Harmonized Tariff Schedule of the United States (HTSUS), the provision for "Other toys...and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other," with an applicable duty rate of 6.8 percent ad valorem.

The protestant claims that the "strobie assortment" should be classified under subheading 9505.90.60, HTSUS, as a festive article, with an applicable duty rate of 3.1 percent ad valorem. Protestant notes that a "strobie ghost" item was included in Pre- entry Classification Determination (PC) 865387, circulated in September 1991. Although that article was identified by a different (Kmart Corp.) item no., product code no., and name, the protestant claims that the item is identical to the "strobie
assortment" in nature and construction, with only the outer coverings having been changed to provide individual characteristics.

The "strobie assortment" article, identified by Payless item no. 463-935, and Payless product code no. 89-19-61, essentially consists of a string-suspended toy bat and spider, surrounding a plastic housing. The plastic housing contains a battery-powered, electronic sound system. After a switch is turned on, sound activates the device, which moves, flashes, and emits sounds.

ISSUES:

1) Whether the "strobie assortment" item should be classified in heading 9505, HTSUS, as a festive article; or in heading 9503, HTSUS, as an other toy representing a non-human creature.

LAW AND ANALYSIS:

Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, provides for, among other items, festive, carnival or other entertainment articles. The EN to heading 9505 states, in part, 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.

In general, merchandise is classifiable in heading 9505, HTSUS, 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the "strobie assortment" article to be made of non-durable material (since it is not designed for sustained wear and tear, nor is it purchased because of its extreme worth or value). With respect to the second criterion, however, the item's primary function is not decorative but utilitarian, in that it serves mainly to provide amusement. We also find the differences between the subject item and the "strobie ghost" listed in PC 865387, to be substantial. Thus, the item is not classifiable as a festive article under heading 9505, HTSUS, and must be classified elsewhere.

Heading 9503, HTSUS, provides for "Other toys...and accessories thereof." The ENs to chapter 95 state that the chapter covers toys of all kinds, whether designed for the amusement of children or adults. The EN to heading 9503 indicates that the heading covers toys representing non-human creatures, and that many of the toys are mechanically or electrically operated. It is clear that heading 9503 accurately describes the "strobie assortment" article. See Headquarters Ruling Letter (HRL) 952472, issued February 8, 1993, for a similar ruling.

HOLDING:

The "strobie assortment" article, identified by Payless item no. 463-935, and Payless product code no. 89-19-61, is classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...and accessories thereof: Toys representing animals or non- human creatures (for example, robots and monsters) and parts and accessories thereof: Other, Toys not having a spring mechanism: Other." The applicable duty rate is 6.8 percent ad valorem.

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned 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, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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