CLA-2 CO:R:C:F 089956 STB
District Director of Customs
P.O. Box 619050
1205 Royal Lane
Dallas, Texas 75261
RE: Decision on Application for Further Review of Protest No.
5501-90-100482, filed July 26, 1990, concerning the
classification of metallic balloons.
Dear Sir:
This is a decision on a protest filed July 26, 1990, against
your decision on the classification and liquidation of twenty-
nine (29) different entries of metallic balloons that were made
between the dates of July 7, 1989 and February 23, 1990. The
entries were all liquidated on April 27, 1990.
FACTS:
You classified the subject metallic balloons in subheading
9503.90.5000, Harmonized Tariff Schedule of the United States
(HTSUSA), the provision for other toys, other, other, inflatable
toy balls, balloons and punch balls. The applicable duty rate
for that provision is 6.8 percent ad valorem. Protestant claims
that the merchandise should be classified under subheading
9505.90.6000, HTSUSA, the provision for festive, carnival or
other entertainment articles, other, other, dutiable at 3.1
percent ad valorem.
The balloons in question are described by the protestant as
"aluminum-coated mylar envelopes of various shapes and sizes."
They are sold at the retail level for a variety of uses but,
according to the importer, they are primarily marketed as
greetings and as decoration for festive occasions. The
importer's submission states that the subject merchandise
consists of aluminum-coated mylar envelopes imprinted with such
legends as "Happy Birthday" and "Happy Anniversary" while others
display stylized drawings of licensed characters such as Garfield
and Snoopy. Counsel for the importer stated in a meeting with
-2-
Customs Headquarters personnel that the importer does not possess
the rights to licensed characters such as Garfield, and therefore
invents its own characters but concentrates mostly on festive and
greeting themes. A review of the entries under protest
indicates many types of balloons, including balloons described as
"Welcome Back" balloons, "Thank You" balloons, "Be My Valentine"
balloons, "Teddy Beddy Boy" balloons, and plain, red balloons.
The three samples that were submitted to Customs all convey
Christmas/Holiday related messages and are predominantly
decorated in Christmas related colors. Counsel also stated that
the aluminum construction of this merchandise helps the items
maintain inflation for a long period of time and thus sets them
apart from latex balloons.
ISSUE:
Whether the subject merchandise should be classified under
subheading 9503.90.5000, HTSUSA, the provision for balloons or
under subheading 9505.90.6000, HTSUSA, the provision for festive,
carnival or other entertainment articles?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). 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 GRI's may
then be applied. 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.
The protestant has claimed classification in heading 9505,
HTSUSA. Heading 9505 provides, in pertinent part, for
"[f]estive, carnival or other entertainment articles." The EN's
to heading 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,
-3-
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.
* * *
Articles classifiable in heading 9505, HTSUSA, tend to have no
function other than decoration.
Heading 9505 is generally regarded as a use provision.
Consequently, Additional U.S. Rule of Interpretation 1(a) must be
reviewed. That rule indicates that:
In the absence of special language or context which
otherwise requires--
(a) a tariff classification controlled by use (other
than actual use) is to be determined in accordance with
the use in the United States at, or immediately prior
to the date of importation, of goods of that class or
kind to which the imported goods belong, and the
controlling use is the principal use.
It is our determination that this merchandise is not
classified in heading 9505, HTSUSA. The various items that are
the subject of this protest display different motifs, including
not only Christmas and other holiday related themes but also
general greeting motifs and "themeless" motifs that could be
considered cute, humorous, or amusing, but are not related to any
specific festive occasion or greeting. Some of the balloons have
no message or picture. Regardless of motif, however, these items
are basically balloons. Balloons, as a class or kind of
merchandise, are not "traditionally associated with a particular
holiday" as required by the EN's; they are sold year-round in a
variety of motifs, as illustrated by the variety of balloons that
are the subject of this protest. Additionally, balloons are not
"traditionally used at Christmas festivities", also mentioned by
the EN's as a possible mode of inclusion in heading 9505, HTSUSA.
-4-
The protestant discusses several prior Customs rulings in
which various items were classified as festive articles in
heading 9505, HTSUSA, and argues that these rulings are analogous
to the current protest. Examination of those rulings, however,
reveals that the merchandise discussed therein can be readily
distinguished from the balloons presently considered.
We next consider classification in heading 9503, HTSUSA, and
specifically in subheading 9503.90.5000, HTSUSA, which provides
eo nomine for "Other toys...Inflatable toy balls, balloons and
punchballs." The EN's to Chapter 95 indicate that "this chapter
covers toys of all kinds whether designed for the amusement of
children or adults." The phrase "designed for the amusement of"
is generally understood to indicate the use of an article will be
a factor when classification in Chapter 95 is being considered.
We again refer to Additional U.S. Rule of Interpretation 1(a),
supra. It is our determination that balloons as a class or kind
of merchandise, as well as the particular balloons at issue here,
are indeed designed for the amusement of children or adults and
that obtaining amusement is the principal use of this
merchandise.
As described above, many of the subject balloons have no
greeting or festive related message/picture and thus have little
use other than amusement. The balloons that do display such
messages and pictures are not transformed from their basic status
as balloons. The protestant contends that the balloons are
indeed transformed by the printed material in those instances and
cites Headquarters Ruling Letter (HRL) 086745, dated July 3,
1990, in which Customs classified a plastic, business-like card
as "other printed matter" rather than as a toy. That merchandise
consisted of a piece of plastic resembling a credit card in size
and composition. One side of the card contained information
similar to that found on a business or calling card. The other
side of the card contained a temperature and pressure sensitive
thumb-print size square of plastic sheeting, for use as a novelty
device to "measure" body temperature to determine stress,
tenseness, etc. Customs determined that "the printed information
on the cards provides the essential purpose and use for the
goods" and that the "stress-test" is just a gimmick to draw
attention to the cards.
HRL 086745 can be distinguished from the present matter,
however, in that the plastic cards described in that ruling would
have little value were it not for the printed messages that could
be displayed thereon. Balloons, on the other hand, have a well
known and established use for amusement purposes regardless of
the message or picture displayed. This distinction is supported
in two prior Customs rulings, HRL 062114, dated April 12, 1979,
-5-
and New York Ruling (NY) 814645, (1985). These rulings held that
various balloons, although imprinted with advertising messages,
were nevertheless classified in the TSUSA provision for toys.
Although the rulings were based on the TSUSA language, it is very
similar to the language of the present EN. We thus conclude that
the messages and pictures displayed on a portion of the subject
balloons do not remove the merchandise from classification as
balloons in the toy provision. This question does not arise, of
course, in the consideration of the plain balloon entries. As
for the balloons that display only some type of cute character,
their amusement value, and thus their identity as a toy, is
increased by the picture.
HOLDING:
The metallic balloons are classified in subheading
9503.90.5000, HTSUSA, the provision for other toys, other, other,
inflatable toy balls, balloons and punchballs, dutiable at the
column 1 rate of duty of 6.8 percent ad valorem.
The protest should be denied. A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division