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HQ 952473


February 8, 1993

CLA-2 CO:R:C:F 952473 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

Ms. Mary E. Keller
A.W. Fenton Co., Inc.
1452 Donaldson Road
Erlanger, Kentucky 41018

RE: Modification of New York Ruling Letter (NYRL) 865012; "It's Alive" Action Wind Sock from Taiwan

Dear Ms. Keller:

This letter is in further response to your inquiry of June 20, 1991, on behalf of your client, concerning the tariff classification of an article identified as "It's Alive" Action Wind Sock, to be imported from Taiwan by New Creative Enterprises, Inc. A sample of the item was submitted with your original ruling request.

FACTS:

In NYRL 865012, dated July 29, 1991, 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, bell-shaped housing, which contains an electronic sound system powered by two "AA" batteries. The housing is hung by a string, and is covered with a nylon cloth imprinted with the face representing the ghost. After the switch has been turned on, any loud noise activates the article, which shakes, glows, and makes screaming sounds.

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);

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 "It's Alive" 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
representing non-human creatures, and that many of the toys are mechanically or electrically operated. In comparing headings 9505 and 9503, HTSUSA, it appears that heading 9503 most accurately describes the "It's Alive" article.

It is our determination that the "It's Alive" action wind sock is classified in subheading 9503.49.0020, HTSUSA, the provision for other toys representing non-human creatures without a spring mechanism.

HOLDING:

The "It's Alive" Action Wind Sock 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 865012 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 865012 (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 865012 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

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