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 -2-

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 -3-

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 -4-

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 -5-

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