HQ 958482
CLA-2 RR:TC:FC 958482 ASM
Ms. Mary Ann Day
Import Department
Spearhead Industries, Inc.
Suite 502
401 Adams Ave.
Scranton, PA 18510
RE: Modification of HRL 555610 concerning the
tariff classification of "Lite Stik Glowing Ghost
Decoration"
Dear Ms. Day:
This letter concerns the modification of Headquarters Ruling
Letter (HRL) 555610, dated February 1, 1991, in which you were
advised of the classification of a "Lite Stik Glowing Ghost
Decoration (Item No. 24100) under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA). Pursuant to section
625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section
623 of Title VI (Customs Modernization) of the North American
Free Trade Agreement Implementation Act, Pub. L. 103-182, 107
Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the
proposed modification of HRL 555610, was published July 3, 1996,
in the Customs Bulletin, Volume 30, Number 27.
FACTS:
The subject article is known as a "Lite Stik Glowing Ghost
Decoration." It consists of a plastic ghost decoration, made in
China, and a 4-inch lite stick in a foil wrapper, made in the
U.S. These articles are exported to Hong Kong where they are
blister packaged together. The consumer uses this item by
placing the glowing lite stick on top of a stand inside the ghost
decoration.
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In HRL 555610, dated February 1, 1991, this item was held
to be classifiable under subheading 9505.90.6000, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for "Festive, carnival or other entertainment articles,
including magic tricks and practical joke articles; parts and
accessories thereof: Other: Other."
ISSUE:
Whether the "Lite Stik Glowing Ghost Decoration" is properly
classified as a "festive article" under heading 9505, HTSUSA, or
under the provision for "Other articles of plastics" heading 3926
, HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA, is made in
accordance with the General Rules of Interpretation (GRI's). 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 GRI's may then be applied. The Explanatory Notes to
the Harmonized Commodity Description and Coding System (EN's),
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 GRI's.
Heading 9505, HTSUSA, includes articles which are for
"Festive, carnival, or other entertainment purposes." The EN's
to 9505, state 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.
* * * - 3 -
Although the "Lite Stik Glowing Ghost Decoration" appears to
function primarily as a decoration, we have determined that it
does not meet the criteria established for classification as a
"festive" article within subheading 9505.90, HTSUSA. The fact
that the article is
identified as a "ghost decoration" does not, in and of itself,
convey the requisite association
with Halloween. Ghosts and goblins are not particularly
Halloween related since they often appear in mythology, movies or
cartoons of no significance to Halloween.
This product is retail packaged consisting of two items: a
plastic ghost and 4 inch lite stick in a foil wrapper which is
intended to illuminate the ghost. The lite stick produces
illumination by way of a cyalume chemical. The lite stick, if
imported separately, would be classifiable under heading 3823,
HTSUSA, which provides, in pertinent part, for "chemical products
and preparations of the chemical or allied industries... not
elsewhere specified or included." The EN's to heading 3823,
HTSUSA, indicate that the preparations and chemical products of
this heading include, inter alia:
(34) Articles producing a lighting effect by the
phenomenon of chemiluminescence, e.g., lightsticks
in which the lighting effect is obtained by a
chemical reaction between oxalic acid type esters
and hydrogen peroxide in the presence of a solvent
and fluorescent compound.
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
Inasmuch as the product, as packaged, contains two items that may
be classified under more than one heading, it is not classifiable
pursuant to GRI 1. In this case, we regard the product for
classification purposes as a composite good derived from the
assembly of the two components, the ghost shell and the lite
stick. See GRI 2(a). As a composite good, classification is
determined according to GRI 3.
The text of GRI 3 provides, in pertinent part, that
composite goods, made up of different components, shall be
classified as if they consisted of the component which gives them
their essential character. In this case, we regard the ghost
component as providing the essential character of the article,
following GRI 3(b) and its EN's. Therefore, our position as to
which component, the ghost or the lite stick, provides the
essential character has not changed from HRL 555610. However,
our understanding of the correct scope of heading 9505 has
changed, leading us to a different classification of the whole
article.
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The lite stick is intended to insert into the plastic ghost,
thereby providing the plastic figurine with illumination when
fully assembled. Thus, it is the plastic ghost which should
govern classification of this product because the luminescent
lite stick merely enhances the ghost. Further, the plastic ghost
would continue to provide ornamentation after the light stick is
consumed. Accordingly, the subheading which most specifically
describes the assembled article is 3926.40.0000, HTSUSA, which
provides for "Other articles of plastics... Statuettes and other
ornamental articles." The EN's to heading 3926, provide that the
heading covers articles, not elsewhere specified or included, of
plastics (as defined in Note 1 to the Chapter) or of other
materials of headings 39.01 to 39.14, including statuettes and
other ornamental articles. Furthermore, we have already
indicated that the lite stick would be classifiable in heading
3823, HTSUSA, if imported separately. When imported with the
ghost, this product would not be precluded from classification
under Chapter 39 pursuant to Legal Note 2(b), as a separate
chemically defined organic compound classifiable under Chapter
29.
HOLDING:
The product identified as the "Lite-Stik Glowing Ghost
Decoration" (Item No. 24100) is properly classifiable within
subheading 3926.40.0000, HTSUSA, which provides for
"Other articles of plastics and articles of other materials of
headings 3901 to 3914: Statuettes and other ornamental articles."
This provision is dutiable under the general column one rate at
5.3 percent ad valorem.
HRL 555610, dated February 1, 1991, is hereby modified. In
accordance with section 625, this ruling will become effective 60
days after its publication in the Customs Bulletin. Publication
of rulings or decisions pursuant to section 625 does not
constitute change of practice or position in accordance with
section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division
CLA-2 RR:TC:FC
958482 ASM
U.S. CUSTOMS SERVICE
GENERAL NOTICE
19 CFR PART 177
MODIFICATION OF CUSTOMS RULING LETTER
RELATING TO TARIFF CLASSIFICATION OF
"LITE STIK GLOWING GHOST DECORATION"
AGENCY: U. S. Customs Service, Department of the Treasury
ACTION: Notice of modification of tariff classification ruling
letter.
SUMMARY: Pursuant to section 625(c)(1), Tariff Act of 1930 (19
U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI
(Customs Modernization) of the North American Free Trade
Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057),
this notice advises interested parties that Customs is modifying
a ruling pertaining to the tariff classification of a "Lite Stik
Glowing Ghost Decoration." Notice of the proposed revocation was
published July 3, 1996, in the Customs Bulletin.
EFFECTIVE DATE: Merchandise entered or withdrawn from warehouse
for consumption on or after (60 days after publication in the
Customs Bulletin).
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FOR FURTHER INFORMATION CONTACT: Ann Segura Minardi, Food and
Chemicals Classification Branch, (202-482-6958).
SUPPLEMENTARY INFORMATION:
Background
On July 3, 1996, Customs published a notice in the Customs
Bulletin, Volume 30, Number 27, proposing to modify Headquarters
Ruling Letter (HRL) 555610, dated February 1, 1991, which
classified a product identified as a "Lite Stik Glowing Ghost
Decoration" (Item 24100) under subheading 9505.90.6000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for "Festive, carnival or other
entertainment articles, including magic tricks and practical joke
articles; parts and accessories thereof: Other: Other." No
comments were received in response to this notice.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade
Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057),
this notice advises interested parties that Customs is modifying
HRL 555610 to reflect the proper classification of the "Lite Stik
Glowing Ghost Decoration"within subheading 3926.40.0000, HTSUSA,
which provides for "Other articles of plastics and articles of
other materials of headings 3901 to 3914: Statuettes and other
ornamental articles." This provision is dutiable at the general
column one rate of 5.3 percent ad valorem. HRL 555610, is set
forth in the Attachment to this document.
At this time, it is Customs position that the "Lite Stik
Glowing Ghost Decoration" does not meet the criteria for festive
articles. The fact that the article is identified as a "ghost
decoration" does not, in and of itself, convey the requisite
association with Halloween. Ghosts and goblins are not
particularly Halloween related since they often appear in
mythology, movies or cartoons of no significance to Halloween.
Publication of rulings or decisions pursuant to section 625
does not constitute a change of practice or position in
accordance with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Dated:
John Durant, Director
Tariff Classification
Appeals Division