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HQ 952889





March 17, 1993

CLA-2 CO:R:C:F 952889 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director
U.S. Customs Service
300 South Ferry St. Terminal Island
Room 2107
San Pedro, CA 90731

RE: Decision on application for further review of Protest No. 2704-91-105022, filed December 5, 1991, concerning classification of plastic inflatable bat animal; Heading 9503, other toy; Not 9505, festive article; HRL's 952249 and 083168

Dear Sir:

This is a decision on a protest filed December 5, 1991, against your decision in the classification of certain merchandise liquidated on October 11, 1991.

FACTS:

The article at issue, a plastic inflatable animal figure representing a bat, vendor style No. 9181, importer item No. 897074, is imported from Hong Kong and measures approximately 52 inches, in width, when inflated. The protestant entered the article under subheading 9505.90.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles...: Other: Other," at a duty rate of 3.1 percent ad valorem.

You classified the article under subheading 9503.49.0020, as "Other toys...: 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," at a duty rate of 6.8 percent ad valorem.

ISSUE:

Whether the inflatable bat is classifiable in heading 9503 as an other toy or is classifiable in heading 9505 as a festive article.

LAW AND ANALYSIS:

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate 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 article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

First, the inflatable bat is made of non-durable material. Customs will consider an article, such as the inflatable bat, 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 (as would be the case with a decorative, yet costly, piece of art or crystal).

However, when examining the inflatable bat, as a whole, it is evident that the article is not traditionally associated or used with a particular festival. Bats, witches, ghosts and other scary beings or creatures are not particularly related to Halloween since they often appear in mythology, movies, or cartoons of no significance to Halloween. The inflatable bat is not ejusdem generis with the articles cited in the EN's to 9505, as exemplars of traditional, festive articles. Although, when meeting with Customs, counsel indicated that by its shape, design, and ornamentation the inflatable bat and other certain "types" of bats are traditionally associated with Halloween, it currently is our position that the motif of an article is not dispositive of its classification and that these factors do not transform an item into a festive article. Instead, Customs classifies, as festive, articles (such as Christmas stockings and tree ornaments) which as a whole, without principally relying on the articles' motif, are identifiable as being traditionally associated or used with a particular festival. The inflatable bat must be classified elsewhere. See Headquarters Ruling Letter (HRL) 952249, issued October 30, 1992, where witch, skull, and ghost figures were classified as other than festive articles.

Heading 9503, HTSUSA, provides for, inter alia, other toys. The EN's to Chapter 95, HTSUSA, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs' position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUSA. Customs defines principal use as that use which exceeds each other single use of the article. In this case, since the article will be principally used as a toy, it is classifiable in 9503. We note that while the inflatable bat may lack the material features to be a manipulated plaything, it still is designed and used principally for amusement. In other words, as this object gives the same kind of enjoyment as playthings give, its purpose also is amusement. See HRL 083168, issued April 8, 1991, where a stuffed textile pumpkin was classified as a toy. The appropriate subheading for the inflatable bat is 9503.49.0020.

HOLDING:

The inflatable bat is classifiable in subheading 9503.49.0020, HTSUSA, as "Other toys...: 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 general column one rate of duty is 6.8 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision with the Form 19 should be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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