CLA-2 CO:R:C:F 953289 LPF
Mr. A. Silvey
Silvey Shipping Co., Inc.
Bldg. 75
North Hanger Road - Suite 211
JFK International Airport
Jamaica, NY 11430
RE: Inflatable Hearts and Valentine Card; Heading 3926, HTSUSA,
other articles of plastics; Not 9505 festive articles; Not
9503 toys; GRI 3(b) set put up for retail sale; HRL's 951143,
088207
Dear Mr. Silvey:
This is in response to your letter of December 29, 1992,
submitted on behalf of The Paper Magic Group, regarding the
proper classification, under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), of various inflatable
hearts. You submitted samples with your request for a binding
ruling.
FACTS:
In New York Ruling Letter 881358, articles identified in your
ruling request as Easter Pals (item #614000) and Dudley Egg
Dipper (item #616020) were classified under the HTSUSA. The
merchandise still at issue includes various inflatable hearts and
an inflatable Valentine card, imported from China. The
inflatable vinyl hearts measure from 18 to 21 inches when
inflated. Various cartoon characters including the Amazing
Spider Man (Item #450804) and Tiny Toon Adventures (Item #450805)
and/or messages such as "Be My Valentine" (Item #450803) are
printed on the articles' surface. The inflatable Valentine card
(Item #450802) includes a 10 inch inflatable heart, mailable
envelope, and marking pen. The phrase "Let's Be Valentines" is
printed on the article's surface.
ISSUE:
Whether the inflatable heart articles are classifiable in
heading 9505 as festive articles, in 9503 as toys, or in 3926 as
other articles of plastics.
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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. 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.
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).
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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.
Customs will consider articles, such as the inflatable
hearts, to be made of non-durable material since they are not
designed for sustained wear and tear, nor are purchased because
of their extreme worth or value (as would be the case with a
decorative, yet costly, piece of art or crystal). In addition,
the articles' primary function is decorative, as opposed to,
utilitarian. It is apparent the inflatable hearts serve no
useful function besides their role as decoration.
However, when examining each inflatable heart article, 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 Day slogan will not transform the items into festive
articles. See Headquarters Ruling Letters 951143, issued January
15, 1993 and 088207, issued June 4, 1991, where inflatable hearts
and candy box decorations with Valentine's Day slogans were
classified as other than festive articles. The subject articles
also must be classified elsewhere.
In regard to heading 9503, other toys, the EN's to Chapter
95 indicate that "this chapter covers toys of all kinds whether
designed for the amusement of children or adults." It is Customs
position that the amusement requirement means that toys should be
designed and used principally for amusement. See Additional U.S.
Rule of Interpretation 1(a), HTSUSA. Customs defines principal
use as that use which exceeds each other single use of the
article. The inflatable hearts will not be principally used for
amusement. Instead, they will be used for decoration and to send
an affectionate message. Inanimate objects, such as the hearts,
do not provide the same kind of enjoyment given by playthings.
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.
We note that the inflatable Valentine card consists of
various components which are classifiable as follows: the
envelope in heading 4817, the marking pen in heading 9608, and
the inflatable heart in heading 3926. Pursuant to GRI 3(b), the
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merchandise qualifies as a set put up for retail sale since: (a)
at least two items are classifiable in different headings; (b)
the merchandise consists of items put up together to carry out a
specific activity, e.g., to send a friend or loved one an
affectionate message; and (c) the merchandise, in its retail
package, is ready for direct sale without repacking.
We are directed by GRI 3(b) to classify the set by the item
which imparts its essential character. Because the inflatable
heart not only provides the greatest bulk and weight of the
article, but also, based on use, distinguishes the article as an
inflatable Valentine card, it imparts the article's essential
character. See EN VIII to GRI 3(b). For the reasons previously
discussed, the inflatable Valentine card is classifiable in
subheading 3926.90.75.
HOLDING:
The inflatable hearts and inflatable Valentine card 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 applicable rate of
duty is 4.2 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division