CLA-2 CO:R:C:F 955095 GGD
Mr. Jerrold E. Anderson
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
RE: Modification of New York Ruling Letter (NYRL) 887442;
"Pumpkin McNugget;" Not Festive Article; Not GRI 3 Set
Dear Mr. Anderson:
In NYRL 887442, issued June 30, 1993, six separate plastic
representations of the "Chicken McNugget" fast food product were
classified. One of the sample items, identified as "Pumpkin
McNugget," was classified in subheading 9505.90.60, HTSUSA, which
provides for "Festive, carnival or other entertainment articles
...parts and accessories thereof: Other: Other." We have
reviewed that ruling and, with respect to the "Pumpkin McNugget"
article, have found it to be partially in error. The correct
classification is as follows.
FACTS:
The sample at issue measures approximately 2-1/2 inches in
height, and consists of two components, a plastic, creature-like
representation of a "Chicken McNugget," and a two-piece, plastic
jack-o'-lantern, into which the "Chicken McNugget" portion may be
inserted. The jack-o'-lantern component is not capable of
illumination.
ISSUE:
Whether the article is properly classified as a festive
article in subheading 9505.90.60, HTSUSA; as a toy representing a
non-human creature in subheading 9503.49.0020, HTSUSA; as an
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other toy not incorporating a motor or spring mechanism in
subheading 9503.90.60, HTSUSA; or as other toys put up in sets in
subheading 9503.70.80, HTSUSA.
LAW AND ANALYSIS:
Classification under the HTSUSA 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
In NYRL 887442, Customs found that the two components of the
"Pumpkin McNugget" were classifiable in separate headings (i.e.,
9503 and 9505), that they comprised a set, and that neither
component provided the whole article with its essential
character. In accordance with GRI 3(c), the set was classified
under the heading which occurs last in numerical order, i.e.,
heading 9505, HTSUSA. In classifying traditional festive
articles for Halloween, however, it is Customs position that only
those jack-o'-lanterns which: a) are of a pumpkin shape or form,
and b) are capable of illumination, qualify as festive articles.
See Headquarters Ruling Letter 951897, issued August 26, 1992.
Since this jack-o'-lantern component is not capable of
illumination, we must find the tariff provision which properly
describes the components and the entire article.
Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95. Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults. It is apparent
that each component of the "Pumpkin McNugget" is designed for
amusement. At the four digit level of the tariff schedule, each
component is classified in heading 9503, and no reference to GRI
3 is necessary.
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An initial look at the six digit level, indicates that
separate subheadings describe each portion, i.e., subheading
9503.49, HTSUSA, for the "McNugget" component, and subheading
9503.90, HTSUSA, for the "Pumpkin" portion. Again, neither item
provides the article with its essential character. However,
subheading 9503.70, HTSUSA, which provides for "Other toys, put
up in sets or outfits, and parts and accessories thereof," is the
six digit subheading which covers both of the complementary toys
in the retail package.
HOLDING:
The article identified as "Pumpkin McNugget" is classified
in subheading 9503.70.80, HTSUSA, the provision for "Other toys,
put up in sets or outfits, and parts and accessories thereof:
Other: Other." The applicable duty rate is 6.8 percent ad
valorem.
This notice should be considered a modification of NYRL
887442 pursuant to 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 887442 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of
merchandise under that ruling. However, for the purposes of
future transactions in merchandise of this type, NYRL 887442 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, you may, at your 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