CLA-2 CO:R:C:F 952474 GGD
Mr. James Redman
Patrick Powers Customs Brokers, Inc.
P.O. Box 30155
JFK Airport Station
Jamaica, New York 11430
RE: Modification of New York Ruling Letter (NYRL) 869894; "Sonic
Control Ghost" article from Taiwan
Dear Mr. Redman:
This letter is in further response to your inquiry of
December 11, 1991, on behalf of your client, concerning the
tariff classification of an article identified as "Sonic Control
Ghost," to be imported from Taiwan by C&F Trading Corp. A sample
of the item was submitted with your original ruling request.
FACTS:
In NYRL 869894, dated January 8, 1992, Customs classified
the article under subheading 9505.90.6000, HTSUSA, the provision
for festive, carnival or other entertainment articles, including
magic tricks and practical joke articles. The applicable duty
rate for this subheading is 3.1 percent ad valorem. We have
reviewed that ruling and have found it to be partially in error.
The article consists of a plastic housing, which contains an
electronic sound system powered by two "AA" batteries. The
housing is hung by a nylon cord loop, and is covered with white
fabric imprinted with a face representing the ghost. After the
switch has been turned on, any loud noise activates the article,
which lights up, shakes, and makes screaming sounds.
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ISSUE:
Whether the article should be classified in heading 9505,
HTSUSA, as either a festive article or a practical joke article;
or in heading 9503, HTSUSA as an other toy representing a non-
human creature.
LAW AND ANALYSIS:
Classification 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 (EN's) 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 GRI's.
Heading 9505, HTSUSA, 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,
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);
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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 subject 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 article's primary
function is not decorative but utilitarian, in that it serves
primarily to provide amusement. Thus, the item is not classified
as a festive article under heading 9505, HTSUSA, and we need not
consider whether the article satisfies the third criterion.
The other entertainment articles for which heading 9505
provides include magic tricks and practical joke articles. The
EN to heading 9505 states, in part, that the heading covers:
(B) Conjuring tricks and novelty jokes, e.g., packs of
cards, tables, screens and containers, specially
designed for the performance of conjuring tricks;
novelty jokes such as sneezing powder, surprise sweets,
water-jet button-holes and "Japanese flowers".
In Parksmith Corporation v. United States, 67 Cust. Ct. 405,
408, C.D. 4304 (1970), the court reviewed several dictionary and
court case definitions of the term "practical joke," determining
that a practical joke article is one which causes humor by
"somehow placing an individual at a disadvantage through a trick
or prank." It is our determination that, although amusing, the
"Sonic Control Ghost" article does not place an individual at a
disadvantage or fit the definition above. The item is therefore
not classifiable as a practical joke article under heading 9505,
HTSUSA.
Heading 9503, HTSUSA, provides for "[o]ther toys; reduced-
size ("scale") models...and accessories thereof...." The notes
to chapter 95 indicate 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
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representing non-human creatures, and that many of the toys are
mechanically or electrically operated. It thus appears that
heading 9503 most accurately describes the "Sonic Control Ghost"
article.
HOLDING:
The "Sonic Control Ghost" article is classified under
subheading 9503.49.0020, HTSUSA, the provision for "[o]ther
toys...: [t]oys representing animals or non-human creatures...:
[o]ther...[t]oys not having a spring mechanism: [o]ther,"
dutiable at the general column one rate of 6.8 percent ad
valorem.
This notice should be considered a modification of NYRL
869894 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 869894 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type, NYRL
869094 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division