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HQ 956294


June 28, 1994

CLA-2 CO:R:C:F 956294 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00

Ms. Maureen Shoule
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, New York 10038

RE: "5 Foot Jointed Glow Skeleton;" Not Festive Article

Dear Ms. Shoule:

This letter is in response to your inquiry of March 24, 1994, on behalf of your client, F.W. Woolworth Co., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of an article identified as a "5 Foot Jointed Glow Skeleton," to be imported from China. A sample was submitted with your inquiry.

FACTS:

The sample article, identified by item no. 9847, is a two- dimensional, essentially flat skeleton that measures approximately five feet in height. It is comprised of sturdy plastic that glows in the dark, and contains metal, grommet-type hinges at the neck, shoulder, elbow, hip, and knee joints. The item is described as "An indoor/outdoor decoration to treat those tricksters! Already assembled and reusable, too! Fly 'em high from a roof, tree, porch or door... Or hang indoors on a wall, from a ceiling or a doorway!"

ISSUE:

Whether the article is classified in heading 9505, HTSUS, as a festive article, or in heading 3926, HTSUS, as an other article of plastics. -2-

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 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). -3-

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. Although it is plastic and reusable, it is not designed for sustained wear and tear, nor is it purchased because of its extreme worth or value. The item is also primarily decorative in function.

Upon examination of the third criterion, however, we find that skeletons are not traditionally associated or used with a particular festival. They are not the same types of articles cited in the ENs to 9505, as examples of traditional, festive articles. Although a glowing skeleton may suggest a Halloween theme, an item's motif - as noted above - does not transform an article not traditionally associated with Halloween into a festive article. In classifying traditional festive articles for Halloween, it is Customs position that only jack-o'-lanterns of a pumpkin shape or form that are capable of illumination qualify as festive articles. See Headquarters Ruling Letter 951897, issued August 26, 1992. Thus, the item is not classified as a festive article under heading 9505, HTSUS, and must be classified elsewhere.

Heading 3926, HTSUS, provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicates that the heading covers articles of plastics or other materials not elsewhere specified or included, including (among other items) statuettes and other ornamental articles. At the six-digit subheading level, 3926.40, HTSUS, includes other articles of plastics, statuettes and other ornamental articles. Since the glowing skeleton functions primarily as a decoration, it is classified in subheading 3926.40.00, HTSUS, as other articles of plastics, statuettes and other ornamental articles.

HOLDING:

The "5 Foot Jointed Glow Skeleton," item no. 9847, is classified in subheading 3926.40.00, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." The applicable duty rate is 5.3 percent ad valorem.

Sincerely,

John Durant, Director

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