CLA-2 CO:R:C:F 954881 GGD
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.
5501-93-100228, filed June 25, 1993, concerning the
classification of articles identified as "Pop Pop Snappers."
Dear Sir:
This is a decision on a protest timely filed on June 25,
1993, against your decision in the classification of an entry of
small explosive balls identified as "Pop Pop Snappers."
FACTS:
You classified the merchandise under subheading
9505.90.4000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for "Festive, carnival or other
entertainment articles...parts and accessories thereof: Other:
Confetti, paper spirals or streamers, party favors and
noisemakers; parts and accessories thereof," with an applicable
duty rate of 4 percent ad valorem. Protestant claims that the
merchandise should be classified under subheading 9505.90.6090,
HTSUSA, the provision for "Festive, carnival or other
entertainment articles...parts and accessories thereof: Other:
Other," and that the applicable duty rate should be 3.1 percent
ad valorem.
Each individual item is a tear drop-shaped, paper ball
measuring approximately 3/8 inch in diameter, having its paper
covering twisted into a stem that measures approximately 1 inch
-2-
in length. Each ball contains a minute quantity of an explosive
substance which, when held by the stem and thrown against a hard
surface, produces a noise comparable to that of an exploding toy
cap. The items are imported from China in quantities of 50 balls
per cardboard box. Each box has a volume of approximately 4
cubic inches. Printing on the exterior of the box includes the
following statements: CAUTION...Recommended for outdoor
fun...For children 8 years and over...Adult supervision
recommended.
ISSUE:
Whether the items are properly classified in heading 9505,
HTSUSA, as entertainment articles; or in heading 3604, HTSUSA, as
fireworks and other pyrotechnic articles.
LAW AND ANALYSIS:
Classification under the HTSUSA 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
Heading 9505, HTSUSA, provides for, inter alia, festive,
carnival, and other entertainment articles. The EN to 9505
indicates, in pertinent 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, among other items:
(4) Throw-balls of paper or cotton-wool, paper
streamers (carnival type), cardboard trumpets, "blow-
outs", confetti, carnival umbrellas, etc.
-3-
Heading 3604, HTSUSA, provides for fireworks, signaling
flares, rain rockets, fog signals and other pyrotechnic articles.
The EN to 3604 indicates that the heading covers pyrotechnic
articles capable of producing luminous, acoustic, gaseous, smoke-
producing or incendiary effects, including:
(1) Pyrotechnic articles for amusement:
(b) Pyrotechnic toys, such as caps for toy pistols
(prepared in tapes, sheets, rolls or circular plastic
rings), magic candles, and snaps for Christmas
crackers. The combustion of these pyrotechnic toys
causes only limited effects.
Since GRI 1 requires that the classification of goods be
determined according to the terms of the headings and any
relative section or chapter notes, we turn to the legal notes of
the tariff schedule. Chapter 36 falls within Section VI, HTSUSA,
to which section there are no notes relevant to this case.
Neither are there any notes to Chapter 36 that are pertinent
here. Chapter 95 falls within Section XX, HTSUSA, to which
section there are no legal notes. However, Note 1(b) to Chapter
95 states that the chapter does not cover: "[f]ireworks or other
pyrotechnic articles of heading 3604;".
Although it appears that the articles provide some
entertainment, they do so through the pyrotechnic production of
limited acoustic effects. The articles are most specifically
described within heading 3604, and are excluded from Chapter 95
by Note 1(b) above. The items are properly classified in
subheading 3604.90.00, HTSUSA.
HOLDING:
The articles identified as "Pop Pop Snappers" are classified
in subheading 3604.90.00, HTSUSA, which provides for "Fireworks,
signaling flares, rain rockets, fog signals and other pyrotechnic
articles: Other." The applicable duty rate is 7.5 percent ad
valorem.
Since the rate of duty under the classification indicated
above is more than the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision should be
attached to the Form 19 to be returned to the protestant.
-4-
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, Lexis, the Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division