CLA-2 CO:R:C:T 083168 KWM
Mr. Ken August
Fun-World
80 Voice Road
Carle Place, New York 11514
RE: Revocation of New York Ruling Letter 832645, dated
October 25, 1988; Stuffed pumpkin toy; Festive articles;
Toys; Use provision; Eo Nomine provision; GRI 3(a).
Dear Mr. August:
On October 25, 1988, our New York office issued to you
New York Ruling Letter (NYRL) 832645, regarding the tariff
classification of a stuffed pumpkin creature with suction
cups. Since that ruling was issued, we have had occasion to
reconsider the rationale of that ruling, and have determined
that it is incorrect. We hereby revoke NYRL 832645, for the
reasons below.
FACTS:
The merchandise at issue is a stuffed textile pumpkin
possessing some human characteristics. The body of the
creature has a plush orange shell and is stuffed with
polyester. Attached to the face of the pumpkin are a felt
mouth, felt teeth, a plastic nose and plastic eyes. Sprouting
from the top of the creature is a stuffed felt stem and two
unstuffed felt leaves. On each extremity, there is a small
suction cup. The item is clearly designed for placement on a
car or home window as decoration. The New York ruling further
indicates that the merchandise will be produced as part of the
"Halloween line."
NYRL 832645 classified the article in subheading
9505.90.6000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as a festive, carnival or other
entertainment article. We have reviewed the criteria for
classification in heading 9505, HTSUSA, and conclude that the
article may not be properly classified there.
ISSUES:
Is the stuffed pumpkin a festive article of heading 9505,
HTSUSA?
If not, where is it classified?
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 relevant 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 be applied, taken in order.
Heading 9505, HTSUSA, provides for, inter alia:
Festive, carnival, or other entertainment articles,
including magic tricks and practical joke articles;
parts and accessories:
The Explanatory Notes, which are the official interpretation
of the nomenclature at the international level, guide Customs
in understanding the scope of the heading terms. The
explanatory notes to heading 9505, HTSUSA provide 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 and flags)
which are traditionally associated
with a particular festival are also
classified here.
Articles classifiable in heading 9505, HTSUSA tend to have no
function other than decoration.
Heading 9505, HTSUSA, is generally regarded as a use
provision. Additional U.S. Rule of Interpretation 1(a)
mandates that:
1. 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;
Goods of heading 9505, HTSUSA, belong to a class or kind of
merchandise whose principal use is festive. In this case, the
stuffed figure is used as an item of decoration and amusement.
We do not believe that its principal use is festive, it is not
of the class or kind of goods whose principal use is festive,
nor is it an item traditionally associated with a particular
festival. Consequently, the stuffed pumpkin is not
classifiable in heading 9505, HTSUSA.
Heading 9503, HTSUSA, provides for toys representing
nonhumans. This article, if not classifiable elsewhere, falls
within the provisions for stuffed toys, specifically
subheading 9503.41.1000, HTSUSA.
HOLDING:
NYRL 832645 is hereby revoked. The goods described above
as a stuffed pumpkin creature, designed to be affixed to
windows by means of suction cups, are classified as toys
representing non-human creatures; stuffed toys, of subheading
9503.41.1000, HTSUSA. The applicable rate of duty is 6.8
percent ad valorem. Subheading 9902.95.02, HTSUSA, provides
that:
Stuffed or filled toys representing animals or
nonhuman creatures, not having a spring mechanism
and not exceeding 63.5 cm in either length, width or
height (provided for in subheading 9503.41.10 . . .)
may be entered free of duty, if they are entered on or before
December 31, 1992.
In order to insure uniformity in Customs classification
of this merchandise and eliminate uncertainty, we are revoking
NYRL 832645 of October 25, 1988, and issue the above
classification effective with the date of this letter.
However, if after your review of this ruling letter, you
disagree with the legal basis for our decision, we invite you
to submit any arguments you might have with respect to this
matter for our review. Any submission you wish to make should
be received within 30 days of the date of this letter.
This notice to you should be considered a revocation of
NYRL 832645 under 19 CFR 177.9(d)(1). It is not to be applied
retroactively to NYRL 832645 (19 cfr 177.9(d)(2)) and will
not, therefore, affect past transactions for the importation
of your merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type.
NYRL 832645 will not be valid precedent. We recognize that
pending transactions may be adversely affected by this
modification in that current contracts for importation
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 may apply for
relief from the binding effects of this decision as may be
warranted by the circumstances. However, please be advised
that in some instances involving import restraints, such
relief may require separate approvals from other government
agencies.
Sincerely,
John A. Durant
Director
Commercial Rulings Division