CLA-2 CO:R:C:F 952889 LPF
District Director
U.S. Customs Service
300 South Ferry St. Terminal Island
Room 2107
San Pedro, CA 90731
RE: Decision on application for further review of Protest No.
2704-91-105022, filed December 5, 1991, concerning
classification of plastic inflatable bat animal; Heading
9503, other toy; Not 9505, festive article; HRL's 952249 and
083168
Dear Sir:
This is a decision on a protest filed December 5, 1991,
against your decision in the classification of certain
merchandise liquidated on October 11, 1991.
FACTS:
The article at issue, a plastic inflatable animal figure
representing a bat, vendor style No. 9181, importer item No.
897074, is imported from Hong Kong and measures approximately 52
inches, in width, when inflated. The protestant entered the
article under subheading 9505.90.60, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), as "Festive, carnival or
other entertainment articles...: Other: Other," at a duty rate of
3.1 percent ad valorem.
You classified the article under subheading 9503.49.0020, as
"Other toys...: 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," at a
duty rate of 6.8 percent ad valorem.
ISSUE:
Whether the inflatable bat is classifiable in heading 9503 as
an other toy or is classifiable in heading 9505 as a festive
article.
-2-
LAW AND ANALYSIS:
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 indicate 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 article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
First, the inflatable bat is made of non-durable material.
Customs will consider an article, such as the inflatable bat, 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 (as would be the case with a decorative,
yet costly, piece of art or crystal).
-3-
However, when examining the inflatable bat, as a whole, it
is evident that the article is not traditionally associated or
used with a particular festival. Bats, witches, ghosts and other
scary beings or creatures are not particularly related to
Halloween since they often appear in mythology, movies, or
cartoons of no significance to Halloween. The inflatable bat is
not ejusdem generis with the articles cited in the EN's to 9505,
as exemplars of traditional, festive articles. Although, when
meeting with Customs, counsel indicated that by its shape,
design, and ornamentation the inflatable bat and other certain
"types" of bats are traditionally associated with Halloween, it
currently is our position that the motif of an article is not
dispositive of its classification and that these factors do not
transform an item into a festive article. Instead, Customs
classifies, as festive, articles (such as Christmas stockings and
tree ornaments) which as a whole, without principally relying on
the articles' motif, are identifiable as being traditionally
associated or used with a particular festival. The inflatable
bat must be classified elsewhere. See Headquarters Ruling Letter
(HRL) 952249, issued October 30, 1992, where witch, skull, and
ghost figures were classified as other than festive articles.
Heading 9503, HTSUSA, provides for, inter alia, other toys.
The EN's to Chapter 95, HTSUSA, indicate that "this chapter
covers toys of all kinds whether designed for the amusement of
children or adults." It is Customs' position that the amusement
requirement means that toys should be designed and used
principally for amusement. See Additional U.S. Rule of
Interpretation 1(a), HTSUSA. Customs defines principal use as
that use which exceeds each other single use of the article. In
this case, since the article will be principally used as a toy,
it is classifiable in 9503. We note that while the inflatable
bat may lack the material features to be a manipulated plaything,
it still is designed and used principally for amusement. In
other words, as this object gives the same kind of enjoyment as
playthings give, its purpose also is amusement. See HRL 083168,
issued April 8, 1991, where a stuffed textile pumpkin was
classified as a toy. The appropriate subheading for the
inflatable bat is 9503.49.0020.
HOLDING:
The inflatable bat is classifiable in subheading
9503.49.0020, HTSUSA, as "Other toys...: 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 general column one rate of duty is
6.8 percent ad valorem.
-4-
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision with the Form
19 should be sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division