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

HQ 953289 April 13, 1993 CLA-2 CO:R:C:F 953289 LPF CATEGORY: Classification TARIFF NO.: 3926.90.75 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. -2- 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). -3- 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 -4- 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