HQ 083168: 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).

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 083168

                           April 8, 1991

   CLA-2 CO:R:C:T 083168 KWM

   CATEGORY: Classification

   TARIFF NO.: 9503.41.1000

   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