CLA-2 CO:R:C:F 955758 GGD
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.
2904-93-100235, filed December 27, 1993, concerning the
classification of articles identified as "strobie ghost" and
a pumpkin light string.
Dear Sir:
This is a decision on a protest timely filed on December 27,
1993, against your decision in the classification and liquidation
of an entry in November 1993, of "strobie ghosts" and pumpkin
light strings.
FACTS:
You classified the "strobie ghost" item 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. You
classified the pumpkin light string under subheading 9405.30.00,
HTSUS, the provision for "Lamps and lighting fittings...and parts
thereof not elsewhere specified or included: Lighting sets of a
kind used for Christmas trees," with an applicable duty rate of 8
percent ad valorem.
Protestant notes that a "strobie ghost" article and a
pumpkin light string were items included in Pre-entry
Classification Determination (PC) 865387, circulated in September
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1991. Although those articles were identified by different
(Kmart Corp.) item nos. and product code nos., the protestant
claims that the items are identical to the subject merchandise.
The protestant asserts that to maintain consistency with the PC
determination, the "strobie ghost" article should be classified
under subheading 9505.90.60, HTSUS, as a festive article (with an
applicable duty rate of 3.1 percent ad valorem), and the pumpkin
light string should be classified under subheading 9405.40.80,
HTSUS, as other electric lamps and lighting fittings not of base
metal (with an applicable duty rate of 3.9 percent ad valorem).
The "strobie ghost" article, identified by Payless item no.
170-399, and Payless product code no. 89-19-65, essentially
consists of a string-suspended, small plastic housing, containing
a battery-powered, electronic sound system. After the switch is
turned on, sound activates the cloth-covered housing, which
shakes, flashes, and emits sounds.
The pumpkin light string, identified by Payless item no.
170-795, and Payless product code no. 89-19-25, essentially
consists of a wire harness with ten sockets, ten miniature light
bulbs, and ten removable plastic light covers in the shapes of
jack-o'-lantern pumpkins.
ISSUES:
1) Whether the "strobie ghost" 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.
2) Whether the pumpkin light string should be classified in
subheading 9405.40.80, HTSUS, as other electric lamps and
lighting fittings not of base metal; or in subheading 9405.30.00,
HTSUS, as a lighting set of a kind used for Christmas trees.
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
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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 ghost" 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
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mainly to provide amusement. 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 ghost" article. See Headquarters Ruling
Letter (HRL) 952472, issued February 8, 1993, for a similar
ruling.
With regard to the pumpkin light string, the proper heading
is clear, i.e., heading 9405 for lamps and lighting fittings and
parts thereof not elsewhere specified or included. Subheading
9405.30 provides for lighting sets of a kind used for Christmas
trees, while subheading 9405.40 covers other electric lamps and
lighting fittings.
In HRLs 953932 and 952513, issued May 10 and April 26, 1993,
respectively, we considered the tariff classification of separate
electric Halloween light strings substantially similar to the
pumpkin light string. In each of the rulings, we noted that
several major importers of lighting used for holiday or
entertainment purposes had indicated that lighting fittings ten
feet in length, incorporating as few as ten bulbs were of the
kind used for Christmas trees. We held that the light strings
were properly classified in subheading 9405.30.00, HTSUS.
Consistent with our determinations in HRLs 953932 and 952513, the
pumpkin light string is classified in subheading 9405.30.00,
HTSUS.
HOLDING:
The "strobie ghost" article, identified by Payless item no.
170-399, and Payless product code no. 89-19-65, 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 pumpkin light string, identified by Payless item no.
170-795, and Payless product code no. 89-19-25, is classified in
subheading 9405.30.0010, HTSUSA, the provision for "Lamps and
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lighting fittings...and parts thereof not elsewhere specified or
included: Lighting sets of a kind used for Christmas trees,
Miniature series wired sets." The applicable duty rate is 8
percent ad valorem.
In light of the PC determination noted above, the protest
should be allowed. For future transactions in merchandise of
this type, however, the protestant should be advised that the
goods will be classified pursuant to this ruling. 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
Commercial Rulings Division