Request to Reconsider NY N301522; Tariff classification of a set consisting of self-sealing balloons and a pump

U.S. Customs and Border Protection HQ H302562 November 23, 2020 CLA-2 OT:RR:CTF:EMAIN H302562 NVF CATEGORY: Classification TARIFF NO.: 8414.59.65 Christian Pellone Zuru, LLC 228 Nevada Street El Segundo, CA 90245 Re: Request to Reconsider NY N301522; Tariff classification of a set consisting of self-sealing balloons and a pump Dear Mr. Pellone: This letter is in response to your request, dated December 27, 2018, for reconsideration of New York Ruling Letter (“NY”) N301522, which was issued to you on November 28, 2018. In NY N301522, U.S. Customs and Border Protection (“CBP”) classified a set of self-sealing balloons and balloon pump under subheading 8414.59.65 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; Other; Other; Other; Other; Centrifugal.” We have reviewed NY N301522, determined that it is correct, and for the reasons set forth below, are affirming that ruling. Because you did not respond to our communications regarding the conference you requested, we are treating your request for a conference as waived. As described in the original ruling, the merchandise consists of twenty-four self-sealing party balloons (three “stems” of eight balloons), in their own retail packaging, and an electric air pump. These two items are put up together in packaging for retail sale. In use, a stem of a balloon or various balloons is attached to the reusable pump and the pump’s centrifugal component moves air into the balloon. This process is repeated by attaching other self-sealing balloons included in the set or available in replacement retail packs to the pump. Together, the air pump and the balloons produce inflated self-sealing balloons. As noted in the product literature accompanying your original ruling request, the pump can simultaneously inflate up to forty balloons with an inflation time of forty seconds. In addition, the pump is reusable and can be used to inflate other balloons not included with the set. In the original ruling, we determined that the merchandise was a set and that the balloon pump imparted the essential character of the set, pursuant to General Rule of Interpretation (GRI) 3(b). Accordingly, we classified the set in heading 8414, HTSUS which provides for air or vacuum pumps. In your reconsideration request, you assert that the balloons impart the essential character of the set and therefore it should be classified under heading 9503, HTSUS which provides for, “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” In support of the position that balloons impart the essential character when imported as a set with a pump, you refer to NY I85492 (Sep. 20, 2002), NY K84581 (Mar. 30, 2004), NY K83637 (Mar. 5, 2004), PD G80523 (Aug. 10, 2000), and NY L80206 (Oct. 21, 2004). It is well-established that a determination as to “essential character” is driven by the particular facts of the case at hand. See, e.g., Alcan Food Packaging (Shelbyville) v. United States, 771 F.3d 1364, 1366 (Fed. Cir. 2014). After re-examining the rulings you have cited, we have determined that they do not support the conclusion that the balloons in this case impart the essential character of the instant set. NY I85492 classifies cylindrical balloons that have a valve which allows for the air in the balloons to be suddenly released, propelling the balloons like a rocket. NY K84581 and NY K83637 both classify balloons that are used to make balloon animals and models. These three rulings classify balloons that are used and handled after inflation by the user, principally for amusement. While a pump accompanies the balloons in the set, there is no indication that the pump components are designed to inflate multiple balloons at once or intended to be used after the instant balloons have been used. By contrast, the balloons in the instant set are strung together and used for decoration, and are not used as toys or for entertainment purposes after inflation. Your reliance on PD G80523 and NY L80206 is similarly misplaced. Both classify inflatable play toys used principally for amusement. PD G80523 classifies a play roller tube made from heavy duty PVC and NY L80206 classifies an inflatable play structure (also made from PVC) which is large enough for children to enter and play in. The items contemplated in these rulings are made from different materials and are used in a different manner from the instant balloons, namely as toys. Similarly, the pumps that accompany these inflatable toys are subsidiary to the entertainment value of the sets. Taking into consideration the aforementioned construction and capabilities of the instant electric pump, we find that it imparts the essential character of the set by virtue of the fact that it is capable of not only inflating more balloons than those imported within the instant set, but also replacement packages of balloons. By application of GRIs 1, 3(b), and 6, the instant set consisting of self-sealing balloons and an electric balloon pump, is properly classified under heading 8414, HTSUS, and specifically provided for under subheading 8414.59.65, HTSUS, which provides for “Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; Other; Other; Other; Other; Centrifugal.” The general, column one rate of duty is 2.3 percent ad valorem. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8414.59.65, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty.  At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 8414.59.65, HTSUS, listed above. The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading.  For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current. Based on the above, we are denying this reconsideration request and affirming NY N301522. Sincerely, Craig T. Clark, Director Commercial and Trade Facilitation Division