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HQ 956060




July 27, 1994

CLA-2 CO:R:C:F 956060 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000

District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261

RE: Decision on Application for Further Review of Protest No. 5501-93-100343, filed October 19, 1993, concerning the classification of plastic Halloween ornaments.

Dear Sir:

This is a decision on a protest timely filed on October 19, 1993, against your decision in the classification and liquidation of an entry in August 1993, of packages of plastic Halloween ornaments.

FACTS:

You classified the items under subheading 3926.40.00, Harmonized Tariff Schedule of the United States (HTSUS), the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles," with an applicable duty rate of 5.3 percent ad valorem. Protestant claims that the goods should be classified under subheading 9505.90.6090, HTSUSA, as festive articles. The applicable duty rate for the claimed provision is 3.1 percent ad valorem.

The sample article, identified by item no. 41472, is a retail package of six plastic figures that measure approximately one inch in height. The figures represent smiling ghosts, vampires, and bears in "trick or treat" garb.

ISSUE:

Whether the article is classified in heading 9505, HTSUS, as a festive article, or in heading 3926, HTSUS, as an other article of plastics.

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, 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 item is not dispositive of its classification and, consequently, does not transform an item into a festive article.

We consider the figures 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). The items are also primarily decorative in function, although they may be manipulated to provide some degree of amusement.

Upon examination of the third criterion, however, ghosts, vampires, and other costumed creatures are not traditionally associated or used with a particular festival. They are not the same types of articles cited in the ENs to 9505, as examples of traditional, festive articles, nor do they particularly relate to Halloween. Although each of the figures may suggest a Halloween theme, an item's motif - as previously noted - does not transform an article not traditionally associated with Halloween into a festive article. In light of the above, the items are not classified as festive articles under heading 9505, HTSUS, and must be classified elsewhere.

Heading 3926, HTSUS, provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicates that the heading covers articles of plastics or other materials not elsewhere specified or included, including (among other items) statuettes and other ornamental articles. At the six-digit subheading level, 3926.40, HTSUS, includes other articles of plastics, statuettes and other ornamental articles. Since the figures function primarily as decorations, they are classified in subheading 3926.40.00, HTSUS, as other articles of plastics, statuettes and other ornamental articles.

HOLDING:

The article consisting of plastic Halloween ornaments, identified by item no. 41472, is classified in subheading 3926.40.00, HTSUS, the provision for "Other articles of plastics
and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The applicable duty rate is 5.3 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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