HQ 951143: Modification of NYRL 868309; Inflatable hearts in 3926, HTSUSA; Other articles of plastics; Not 9505 festive articles; HRL 088207

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951143

                        January 15, 1993

CLA-2 CO:R:C:F 951143 LPF

CATEGORY: Classification

TARIFF NO.: 3926.90.75

Ms. Helen H. Seldon
W.M. Stone & Co., Inc.
P.O. Box 3160
Norfolk, VA 23514

RE:  Modification of NYRL 868309; Inflatable hearts in 3926,
     HTSUSA; Other articles of plastics; Not 9505 festive
     articles; HRL 088207

Dear Ms. Seldon:

     In New York Ruling Letter (NYRL) 868309, issued November 19,
1991, inflatable hearts, from China, were classified in
subheading 9505.90.6000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as "Festive, carnival or other
entertainment articles,...: Other: Other."  We have reviewed that
ruling and have found it to be partially in error.  The correct
classification is as follows.

FACTS:

     The article at issue, item number 745810, is a set of three
inflatable hearts.  The hearts, which measure 10 inches in
diameter, each are printed with a message.  We understand that
the hearts are composed of plastic.

ISSUE:

     Whether the set of inflatable hearts is classifiable in
heading 9505 as festive articles, or is classifiable in heading 
3926 as other articles of plastics.

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.  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.

                               -2-

     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).

     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.
     
     First, the inflatable hearts are made of non-durable
material.  Customs will consider an article, such as the
inflatable hearts, to be made of non-durable material since it is
not designed for sustained wear and tear, nor is it purchased
because of its extreme worth or value (as would be the case with
a decorative, yet costly, piece of art or crystal).

     Next, the article's primary function is decorative, as
opposed to, utilitarian.  It is apparent, the inflatable hearts
serve no useful function besides their role as a decoration.


                               -3-

     However, when examining the inflatable hearts, 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's Day slogan will not transform the item into a festive
article.  See Headquarters Ruling Letter 088207, issued June 4,
1991, where candy box decorations with Valentine's Day slogans
were classified as other than festive articles.  The subject
article must be classified elsewhere.

     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.

HOLDING:

     The inflatable hearts 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 general column one rate of duty is 4.2 percent ad
valorem.  We note that the ruling being modified indicated a
general column one rate of duty of 3.1 percent ad valorem. 

     This notice should be considered a modification of NYRL
868309 pursuant to 19 CFR 177.9(d)(1).  It is not to be applied
retroactively to NYRL 868309 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling.  However, for the
purposes of future transactions in merchandise of this type, NYRL
868309 will not be valid precedent.  We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it. 
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division