United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0951033 - HQ 0951181 > HQ 0951143

Previous Ruling Next Ruling



HQ 951143


January 15, 1993

CLA-2 CO:R:C:F 951143 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.75

Ms. Helen H. Seldon
W.M. Stone & Co., Inc.
P.O. Box 3160
Norfolk, VA 23514

RE: Modification of NYRL 868309; Inflatable hearts in 3926, HTSUSA; Other articles of plastics; Not 9505 festive articles; HRL 088207

Dear Ms. Seldon:

In New York Ruling Letter (NYRL) 868309, issued November 19, 1991, inflatable hearts, from China, were classified in subheading 9505.90.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Festive, carnival or other entertainment articles,...: Other: Other." We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

FACTS:

The article at issue, item number 745810, is a set of three inflatable hearts. The hearts, which measure 10 inches in diameter, each are printed with a message. We understand that the hearts are composed of plastic.

ISSUE:

Whether the set of inflatable hearts is classifiable in heading 9505 as festive articles, or is classifiable in heading 3926 as other articles of plastics.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported 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. 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 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 hearts are made of non-durable material. Customs will consider an article, such as the inflatable hearts, 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).

Next, the article's primary function is decorative, as opposed to, utilitarian. It is apparent, the inflatable hearts serve no useful function besides their role as a decoration.

However, when examining the inflatable hearts, as a whole, it is evident that the articles are not traditionally associated or used with a particular festival. The inflatable hearts are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. On the contrary, such heart-shaped articles may serve to express love or affection not only on Valentine's Day, but also on other occasions, such as anniversaries, birthdays, etc. In addition, a Valentine's Day slogan will not transform the item into a festive article. See Headquarters Ruling Letter 088207, issued June 4, 1991, where candy box decorations with Valentine's Day slogans were classified as other than festive articles. The subject article must be classified elsewhere.

Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. As the hearts are inflatable articles, they are classifiable in subheading 3926.90.75.

HOLDING:

The inflatable hearts are classifiable in subheading 3926.90.75, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pneumatic mattresses and other inflatable articles, not elsewhere specified or included." The general column one rate of duty is 4.2 percent ad valorem. We note that the ruling being modified indicated a general column one rate of duty of 3.1 percent ad valorem.

This notice should be considered a modification of NYRL 868309 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 868309 (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 868309 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
Commercial Rulings Division

Previous Ruling Next Ruling

See also: