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