CLA-2 CO:R:C:G 085847 WAW
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center - Suite 3371
New York, N.Y. 10048
RE: Reconsideration of N.Y. Ruling letter 839586 concerning the
classification of "Christmas Ceramic Magnets"
Dear Mr. Simon:
This letter is in response to your request for a
reconsideration of N.Y. Ruling Letter 839586, dated June 22,
1989, on behalf of your client Russ Berrie & Company, Inc.,
concerning the tariff classification of "Christmas Ceramic
Magnets" under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Six sample ceramic magnets were
submitted with your request along with photographs of similar
ceramic magnets.
FACTS:
The sample merchandise submitted consists of two different
style numbers. Item #5362 is an earthenware, heart-shaped,
magnet holder approximately 3-1/4 inches wide, 3 inches long, and
1/4 inch thick. The design on the front of the magnet is a red
and green Christmas holly wreath. This item can be purchased
with the following Christmas messages: "Have a Special
Christmas," "Merry Christmas," and "Friends Make the Holidays
Happy." A circular-shaped magnet one inch in diameter is affixed
to the reverse side of the magnet holder.
Item #5383 is an earthenware, circular-shaped, magnet holder
approximately 3 inches in diameter and 1/4 inch thick. On the
front of one of the sample magnet holders is a teddy bear with a
red bow seated next to a Christmas present. The words "You're
Very Special" are printed above the bear. On the other sample
magnet holder is a Santa Claus holding a miniature Christmas
tree. The words "Christmas Brings Us Near In Heart" are printed
above the Santa Claus. A circular shaped magnet one inch in
diameter is affixed to the reverse side of the magnet holder.
Analysis by the Customs Laboratory confirms that the magnet in
each item consists of ceramic material.
Counsel for the importer maintains that both items #5362 and
#5383 are specially designed, manufactured, imported, advertised,
and marketed as Christmas articles. Counsel further contends
that the magnet holders may be placed on metal objects in the
home such as kitchen refrigerator doors in order to hold
children's Christmas drawings, Christmas shopping lists,
Christmas cards, or letters to Santa. Thus, it is counsel's
position that the articles are properly classified in subheading
9505.10.5000, HTSUSA, as "festive articles."
ISSUE:
Whether the subject merchandise is a "festive article"
properly classified under subheading 9505.10.5000, HTSUSA, or
whether it is more properly classified under some other provision
of the tariff schedule?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
The sample merchandise may be classified under several
possible headings in the nomenclature. Heading 8505, HTSUSA,
provides for electro-magnets, permanent magnets and articles
intended to become permanent magnets after magnetisation. The
Explanatory Notes, which constitute the official interpretation
of the tariff at the international level, state that heading
8505, HTSUSA, does not cover "electro-magnets, permanent magnets
or magnetic devices of this heading, when presented with
machines, apparatus, toys, games of which they are designed to
form part (classified with those machines, apparatus, etc.)."
With respect to the merchandise at issue, it is a magnet designed
to form part of the article. Since the magnet is presented with
and incorporated into a ceramic holder, it is precluded from
classification in this heading.
Heading 6912, HTSUSA, provides for ceramic tableware,
kitchenware, other household articles and toilet articles, other
than of porcelain or china. This heading is applicable to the
sample article because the ceramic magnet is designed to be used
in the kitchen or in other areas of the home. Heading 9505,
HTSUSA, provides for festive, carnival or other entertainment
articles. This heading is also applicable since the ceramic
magnet is decorated with festive motifs that are traditionally
associated with the Christmas season. GRI 3(a) provides that:
When by application of Rule 2(b) or for any other
reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) The heading which provides the most
specific description shall be preferred to
headings providing a more general
description. However, when two or more
headings each refer to part only of the
materials or substances contained in mixed or
composite goods or to part only of the items
in a set put up for retail sale, those
headings are to be regarded as equally
specific in relation to those goods, even if
one of them gives a more complete or precise
description of the goods.
In the instant case, each of the headings refers to part only of
the merchandise at issue. Therefore, the headings are to be
regarded as equally specific, and the classification of the
merchandise at issue cannot be determined by application of GRI
3(a).
GRI 3(b) provides that composite goods made up of different
materials or made up of different components, which cannot be
classified by reference to GRI 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character. According to Explanatory Note VIII to
GRI 3(b), the essential character of an article may be determined
by the nature of the material or component, its bulk, quantity,
weight or value, or by the role of a constituent material in
relation to the use of the goods.
In the instant case, it is our position that no single
component imparts the essential character to the sample article.
Here, the subject articles are partially comprised of a ceramic
housing component that is decorated with festive motifs which are
traditionally associated with the Christmas season. Although the
articles are designed, manufactured and advertised as Christmas
decorative articles, they also are utilitarian magnets designed
to secure or fasten papers to a metal surface. Accordingly, we
have concluded that neither the "festive article" provision nor
the "other household article" provision more specifically
describes the merchandise at issue. Thus, classification cannot
be determined based on the application of GRI 3(b).
When, as in the instant case, the component which gives the
goods at issue their essential character cannot be determined,
classification is ascertained by utilizing GRI 3(c). GRI 3(c)
provides:
(c) When goods cannot be classified by reference to
3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order among
those which equally merit consideration.
Applying GRI 3(c), the ceramic magnets are classifiable
under subheading 9505.10.5000, HTSUSA, since this heading appears
last in numerical order among the headings under consideration.
HOLDING:
In view of the foregoing, the sample ceramic Christmas
magnetic memo holders are classifiable under subheading
9505.10.5000, HTSUSA, which provides for festive, carnival or
other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof: Articles
for Christmas festivities and parts and accessories thereof:
Other: other. Items classified under this subheading are subject
to a rate of duty of 5.8 percent ad valorem.
N.Y. Ruling Letter 839586, dated June 22, 1989, is hereby
modified.
Sincerely,
John Durant, Director
Commercial Rulings Division