HQ 955758

April 15, 1994

CLA-2 CO:R:C:F 955758 GGD

CATEGORY: Classification

TARIFF NO.: 9503.49.0020; 9405.30.0010

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

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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

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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

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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

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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