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HQ 954881

November 16, 1993

CLA-2 CO:R:C:F 954881 GGD


TARIFF NO.: 3604.90.00

District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas/Fort Worth, Texas 75261

RE: Decision on Application for Further Review of Protest No. 5501-93-100228, filed June 25, 1993, concerning the classification of articles identified as "Pop Pop Snappers."

Dear Sir:

This is a decision on a protest timely filed on June 25, 1993, against your decision in the classification of an entry of small explosive balls identified as "Pop Pop Snappers."


You classified the merchandise under subheading 9505.90.4000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof," with an applicable duty rate of 4 percent ad valorem. Protestant claims that the merchandise should be classified under subheading 9505.90.6090, HTSUSA, the provision for "Festive, carnival or other entertainment articles...parts and accessories thereof: Other: Other," and that the applicable duty rate should be 3.1 percent ad valorem.

Each individual item is a tear drop-shaped, paper ball measuring approximately 3/8 inch in diameter, having its paper covering twisted into a stem that measures approximately 1 inch
in length. Each ball contains a minute quantity of an explosive substance which, when held by the stem and thrown against a hard surface, produces a noise comparable to that of an exploding toy cap. The items are imported from China in quantities of 50 balls per cardboard box. Each box has a volume of approximately 4 cubic inches. Printing on the exterior of the box includes the following statements: CAUTION...Recommended for outdoor fun...For children 8 years and over...Adult supervision recommended.


Whether the items are properly classified in heading 9505, HTSUSA, as entertainment articles; or in heading 3604, HTSUSA, as fireworks and other pyrotechnic articles.


Classification under the HTSUSA 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 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 GRIs.

Heading 9505, HTSUSA, provides for, inter alia, festive, carnival, and other entertainment articles. The EN to 9505 indicates, in pertinent 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, among other items:

(4) Throw-balls of paper or cotton-wool, paper streamers (carnival type), cardboard trumpets, "blow- outs", confetti, carnival umbrellas, etc.

Heading 3604, HTSUSA, provides for fireworks, signaling flares, rain rockets, fog signals and other pyrotechnic articles. The EN to 3604 indicates that the heading covers pyrotechnic articles capable of producing luminous, acoustic, gaseous, smoke- producing or incendiary effects, including:

(1) Pyrotechnic articles for amusement:

(b) Pyrotechnic toys, such as caps for toy pistols (prepared in tapes, sheets, rolls or circular plastic rings), magic candles, and snaps for Christmas crackers. The combustion of these pyrotechnic toys causes only limited effects.

Since GRI 1 requires that the classification of goods be determined according to the terms of the headings and any relative section or chapter notes, we turn to the legal notes of the tariff schedule. Chapter 36 falls within Section VI, HTSUSA, to which section there are no notes relevant to this case. Neither are there any notes to Chapter 36 that are pertinent here. Chapter 95 falls within Section XX, HTSUSA, to which section there are no legal notes. However, Note 1(b) to Chapter 95 states that the chapter does not cover: "[f]ireworks or other pyrotechnic articles of heading 3604;".

Although it appears that the articles provide some entertainment, they do so through the pyrotechnic production of limited acoustic effects. The articles are most specifically described within heading 3604, and are excluded from Chapter 95 by Note 1(b) above. The items are properly classified in subheading 3604.90.00, HTSUSA.


The articles identified as "Pop Pop Snappers" are classified in subheading 3604.90.00, HTSUSA, which provides for "Fireworks, signaling flares, rain rockets, fog signals and other pyrotechnic articles: Other." The applicable duty rate is 7.5 percent ad valorem.

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest in full. 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, Lexis, the Freedom of Information Act and other public access channels.


John Durant, Director

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