CLA-2 CO:R:C:G 087106 SLR
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Revocation of HRL 085847 of February 9, 1990;
Magnetic Memo Holders
Dear Mr. Simon:
On February 9, 1990, this office, in Headquarters Ruling
Letter (HRL) 085847, classified various ceramic magnets bearing
Christmas motifs as festive articles in heading 9505, HTSUSA. We
have since reviewed that determination and have found it to be in
error.
FACTS:
The subject merchandise, samples of which are before
Customs, consists of two styles of magnetic memo holders, each
designed to hold drawings, shopping lists, cards, letters, and
reminders to kitchen refrigerator doors and other metal surfaces.
Item #5362 consists of a circular barium ferrite magnet
measuring approximately one inch in diameter affixed to a
heart-shaped ceramic housing disc measuring approximately three
inches in diameter. The disc is decorated on the front with a
red and green holly design outlining an array of Christmas
messages. These messages include: "Have a Special Christmas,"
"Merry Christmas," and "Friends Make the Holidays Happy."
Item #5383 consists of a circular barium ferrite magnet
measuring approximately one inch in diameter affixed to a
circular ceramic housing disc measuring approximately three
inches in diameter. The front of one of the samples shows a
teddy bear with a red bow sitting next to a Christmas present.
The words "You're Very Special" appear above the bear. Another
sample features Santa Claus holding a miniature Christmas tree.
Printed above Santa are the words "Christmas Brings Us Near in
Heart."
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Analysis by the Customs laboratory confirms that the magnet
in each item consists of ceramic material.
In New York Ruling Letter (NYRL) 839586 of June 22, 1989,
the above-described items were classified as household articles
of ceramic in subheading 6912.00.5000, HTSUSA. Maintaining that
the memo holders were more properly classifiable as festive
articles in heading 9505, HTSUSA, you requested the
reconsideration of NYRL 839586. On February 9, 1990, this
office issued HRL 085847 classifying the ceramic magnets as
festive articles, thereby revoking NYRL 839586. Our New York
office has since requested the reconsideration of HRL 085847.
In your submission of September 19, 1990, you asserted that
the memo holders should remain classifiable in heading 9505,
HTSUSA, since their commercial trade names, designs, colors, and
messages indentify them as festive articles. Furthermore, you
maintained that heading 9505 is a use provision, thus allowing
for the classification of utilitarian articles, such as the
subject merchandise, within that heading. You claimed that
heading 6912, HTSUSA, (the provision for ceramic household
articles) is inapplicable since Chapter 69, Legal Note 2(ij)
excludes articles of Chapter 95 from that chapter.
The above-stated arguments were once again presented to
this office during a conference held here at Headquarters on
October 30, 1990. In the alternative, you maintained that as
the magnet component represented the essential character of this
composite good, the memo holders were classifiable in the
heading which provides for permanent magnets -- heading 8505,
HTSUSA. Customs later received your additional submission of
December 27, 1990.
ISSUE:
Whether the memo holders are classifiable as festive
articles of heading 9505, HTSUSA, and, if not, what
classification is appropriate.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
Heading 9505, HTSUSA, provides for "[f]estive, carnival
or other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof." The
Explanatory Notes, which represent the official interpretation
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of the tariff at the international level, offer guidance in
understanding the scope of the headings. The Explanatory Note
to heading 9505 indicates 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.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs.
* * *
As stated in HRL 085276 of November 8, 1989, articles
classifiable in heading 9505 tend to have no other function
than decoration.
The items at issue are designed to hold drawings, shopping
lists, cards, letters and reminders to kitchen refrigerator doors
and other metal surfaces; hence, they serve a utilitarian rather
than decorative function. Moreover, despite the incorporation of
Christmas motifs, these memo holders are not traditionally used
at Christmas to the same degree as Christmas stockings, nativity
scenes, yule logs, or any of the other items mentioned in the
Explanatory Notes. Accordingly, the memo holders are not
classifiable as festive articles in heading 9505.
Heading 8505, HTSUSA, provides for, among other things,
"[p]ermanent magnets...permanent magnet chucks, clamps and
similar holding devices." The Explanatory Note to heading 8505
indicates, in pertinent part, that the heading does not cover
"permanent magnets...when presented with machines, apparatus,
toys, games, etc., of which they are designed to form part
(classified with those machines, apparatus, etc.)."
Here, the magnets were designed to form part of the subject
merchandise. Since the magnets are presented with and
incorporated into ceramic housing devices, they are precluded
from classification as a permanent magnet in heading 8505.
-4-
Heading 6912, HTSUSA, provides for "[c]eramic tableware,
kitchenware, other household articles and toilet articles, other
than porcelain or china." The memo holders are designed for use
in the kitchen and other areas of the home and are made of
ceramic materials. Consequently, they are classifiable as other
household articles of ceramic in heading 6912.
In HRLs 082500 of April 28, 1989, and 083130 of May 2, 1989,
Customs, applying GRI 3(b), classified certain memo holders
composed of metal magnets and textile front coverings as
household articles of iron or steel in heading 7323, HTSUSA.
In the present case, both the components which make up the memo
holders (the disc and magnet) are ceramic. The memo holders,
therefore, are not considered composite goods for tariff
purposes. Classification is to be determined by applying GRI 1.
HOLDING:
The memo holders at issue serve primarily a utilitarian
function and are not traditionally used at Christmas.
Consequently, they are not classifiable as festive articles in
heading 9505.
The merchandise at issue is classifiable in subheading
6912.00.5000, HTSUSA, which provides for ceramic tableware,
kitchenware, other household articles and toilet articles, other
than those of porcelain or china; table and kitchenware; other.
The applicable rate of duty is 7 percent ad valorem.
This notice to you should be considered a revocation of
HRL 085847 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to HRL 085847 (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,
HRL 085847 will not be valid precedent. We recognize that
pending transactions may be adversely affected by this
revocation, 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