us-cbp-cross-rulings-hq-953159•HQ 953159: Reconsideration of NYRL's 832556, issued October 26, 1988, 836965, issued March 2, 1989, and 876442, issued August 12, 1992; Party hats, blowouts, noisemakers and banners in 9505, HTSUSA, as festive, carnival or other entertainment articles; Ball puzzles and party game in 9504, HTSUSA, as articles for arcade, table or parlor games; Plastic loot bags in 3923, HTSUSA, as articles for the conveyance or packing of goods, of plastic; GRI 3(b) set for retail sale
HQ 953159: Reconsideration of NYRL's 832556, issued October 26, 1988, 836965, issued March 2, 1989, and 876442, issued August 12, 1992; Party hats, blowouts, noisemakers and banners in 9505, HTSUSA, as festive, carnival or other entertainment articles; Ball puzzles and party game in 9504, HTSUSA, as articles for arcade, table or parlor games; Plastic loot bags in 3923, HTSUSA, as articles for the conveyance or packing of goods, of plastic; GRI 3(b) set for retail sale
us-cbp-cross-rulings-hq-953159HQ 953159: Reconsideration of NYRL's 832556, issued October 26, 1988, 836965, issued March 2, 1989, and 876442, issued August 12, 1992; Party hats, blowouts, noisemakers and banners in 9505, HTSUSA, as festive, carnival or other entertainment articles; Ball puzzles and party game in 9504, HTSUSA, as articles for arcade, table or parlor games; Plastic loot bags in 3923, HTSUSA, as articles for the conveyance or packing of goods, of plastic; GRI 3(b) set for retail saleGuidance
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 953159
July 19, 1993
CLA-2 CO:R:C:F 953159 LPF
CATEGORY: Classification
TARIFF NOS.: 3923.21.0090, 3923.29.0000, 9504.90.9080,
9505.90.4000, 9505.90.6010
Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut St.
Philadelphia, PA 19106-3883
RE: Reconsideration of NYRL's 832556, issued October 26, 1988,
836965, issued March 2, 1989, and 876442, issued August 12,
1992; Party hats, blowouts, noisemakers and banners in 9505,
HTSUSA, as festive, carnival or other entertainment articles;
Ball puzzles and party game in 9504, HTSUSA, as articles for
arcade, table or parlor games; Plastic loot bags in 3923,
HTSUSA, as articles for the conveyance or packing of goods,
of plastic; GRI 3(b) set for retail sale
Dear Mr. Liberati:
This is in response to your letter dated September 2, 1992,
submitted on behalf of Unique Industries, Inc., requesting
reconsideration of New York Ruling Letters (NYRL's) 832556,
issued October 26, 1988, and 836965, issued March 2, 1989. You
brought these letters to our attention upon receiving NYRL
876442, issued August 12, 1992. We have reviewed these rulings
and have found them to be partially in error. The correct
classification is as follows.
FACTS:
The articles at issue in NYRL 832556 are party hats (Item
#1081) and party blowouts (Item #1083) made of cardboard and
including the words "Disney's" and "Duck Tales." It is our
understanding that the articles are packaged separately. Both
articles were classified in 9505.90.4000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), as festive,
carnival or other entertainment articles, other, confetti, paper
spirals or streamers, party favors and noisemakers.
The merchandise at issue in NYRL 836965 is a "Circus Clown
Accessory Pak" (Style # 1878) containing 4 paper party hats, 4
plastic and paper noisemakers and 4 plastic loot bags all
packaged together. These articles were considered a retail set
and were classified in 9505.90.4000, HTSUSA, as festive, carnival
or other entertainment articles, other, confetti, paper spirals
or streamers, party favors and noisemakers.
-2-
The merchandise at issue in NYRL 876442 is a "Garfield Party
for 8" (Item #13409). It includes 8 paper party hats, 8
blowouts, 1 plastic "Happy Birthday" banner, 8 ball puzzles, 1
party game (similar to "Pin the Tail on the Donkey") and 8
plastic loot bags. All of the articles are packaged together in
a poly bag with a cardboard header. These articles were
classified under the HTSUSA as follows:
1. paper party hats in 9505.90.6000 as festive, carnival or
other entertainment articles, other, other;
2. blowouts and plastic banner in 9505.90.4000 as festive,
carnival or other entertainment articles, other, confetti,
paper spirals or streamers, party favors and noisemakers;
3. ball puzzles and party game in 9504.90.9080 as articles
for arcade, table or parlor games, other, other, other; and
4. plastic loot bags within 3923 as plastic articles for the
conveyance or packing of goods.
ISSUE:
Whether paper or cardboard party hats are classifiable in
9505.90.40 as confetti, paper spirals or streamers, party favors
and noisemakers or in 9505.90.60 as other entertainment articles.
Whether the articles are classifiable as sets for retail sale
or are classifiable under the various headings providing for each
of its individual components.
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.
-3-
In regard to the party hats and party blowouts of NYRL
832556, supra, heading 9505, HTSUSA, 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:...
(3) Articles of fancy dress, e.g., masks, false ears
and noses, wigs, false beards and moustaches (not being
articles of postiche - heading 67.04), and paper hats.
However, the heading excludes fancy dress of textile
materials, of Chapter 61 or 62.
(4) Throw-balls of paper or cotton-wool, paper
streamers (carnival type), cardboard trumpets, "blow-
outs", confetti, carnival umbrellas, etc (emphasis
added).
Pursuant to GRI 1, the terms of the heading and the EN's
indicate that the party hats and blowouts, which are non-durable,
are classifiable within 9505 as entertainment articles. We note
that these articles do not meet the criteria for festive
articles. See, inter alia, Headquarters Ruling Letter 952833,
issued February 6, 1993.
At the subheading level 9505.90.40 provides for confetti,
paper spirals or streamers, party favors and noisemakers, while
9505.90.60 provides for other festive, carnival or entertainment
articles. It is our position that the language in the
subheadings and EN's indicates that the blowouts fit the
description of the non-durable entertainment or party-type
articles classifiable in the former subheading. The party hats
fall within the latter provision which apparently includes fancy
dress, hats, and other similar articles which, although non-
durable, may be worn.
In regard to NYRL's 836965 and 876442, supra, each party kit
consists of various components which are classifiable as follows:
the party hats, blowouts, noisemakers and plastic banner in 9505,
the ball puzzles and party game in 9504, and the plastic loot
bags in 3923. Since separate HTSUSA headings provide for each
item, the articles are classified by applying GRI 3(a) which
explains, in pertinent part, that merchandise which is
classifiable under two or more headings is classified under the
heading which provides the most specific description of the
article. However, all such headings are regarded as equally
specific when each refers to only part of the items in a set put
up for retail sale.
-4-
In accordance with EN X to GRI 3(b), a set put up for retail
sale must: (a) contain at least two items classifiable in
different headings; (b) contain items put up together to meet a
particular need or carry out a specific activity; and (c) be put
up for sale directly to users without repacking.
Both party kits contain at least two items classifiable in
different headings and are ready for direct sale without
repacking. In regard to the party kit of NYRL 836965, the party
hats, noisemakers and plastic loot bags apparently are put up
together to carry out the specific activity of celebrating a
birthday party. Although the loot bag may be used once the party
is over to carry gifts, food, or other goodies home, it also is
used during the celebration to collect or trade "loot." The
articles are used and sold together enabling party-goers to
celebrate a birthday. These loot bags, in contrast to shopping
bags or sacks which are used repetitively, are primarily used
with articles received at a party.
Because this party kit is a set, and the headings under which
the items could be classified refer to only part of the items in
the set, we turn to GRI 3(b) to classify the merchandise. This
provides that the set is classified by the item which gives the
set its essential character. "Essential character" is the
attribute which strongly marks or serves to distinguish what an
article, or set, is. EN VIII to GRI 3(b) explains that essential
character may be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the article.
None of the items appears to represent a significant amount
of the bulk, weight or value of the party kit. Furthermore,
based on use, no one item imparts essential character; rather all
the items function coequally to create the party kit.
Accordingly, GRI 3(c) explains that goods which cannot be
classified by reference to 3(a) or 3(b) are classified under the
heading which occurs last in numerical order among those which
equally merit consideration. The merchandise, therefore, is
classifiable within heading 9505, as festive, carnival or other
entertainment articles, the provision which occurs last in
numerical order. Pursuant to GRI 6, the applicable subheading,
which occurs last in numerical order, is 9505.90.60.
In regard to the party kit of NYRL 876442, the party hats,
banner, party game, ball puzzles, and loot bags are not
necessarily put together for a specific activity, but rather
serve divergent functions or needs. While most of the items are
used to celebrate a birthday party, it is not apparent that the
-5-
ball puzzles are used in this manner. Instead the ball puzzles
primarily function as games, providing enjoyment long after the
party. The merchandise fails as a set, and we return to GRI 1 to
classify each item separately in its own appropriate heading.
HOLDING:
Party hats and blowouts (NYRL 832556):
1. Party hats 9505.90.6010- Festive, carnival or
other entertainment articles,
Other: Other, Hats: Of paper, foil
or plastics, dutiable at 3.1
percent ad valorem.
2. Party blowouts 9505.90.4000- Festive, carnival or
other entertainment articles,
Other: Confetti, paper spirals or
streamers, party favors and
noisemakers, dutiable at 4 percent
ad valorem.
Circus Clown Accessory Pack (NYRL 836965):
9505.90.6010- Festive, carnival or
other entertainment articles,
Other: Other, Hats: Of paper, foil
or plastics, dutiable at 3.1
percent ad valorem.
Garfield Party for 8 (NYRL 876442):
1. Party hats 9505.90.6010- Festive, carnival or
other entertainment articles,
Other: Other, Hats: Of paper, foil
or plastics, dutiable at 3.1
percent ad valorem.
2. Party blowouts and 9505.90.4000- Festive, carnival or
plastic banner other entertainment articles,
Other: Confetti, paper spirals or
streamers, party favors and
noisemakers, dutiable at 4 percent
ad valorem.
3. Ball puzzles 9504.90.9080- Articles for arcade,
and party game table or parlor games...Other:
Other: Other, Other, dutiable at
4.64 percent ad valorem.
-6-
4. Loot bags 3923.21.0090 (if composed of
polymers of ethylene)- Articles for
the conveyance or packing of goods,
of plastics...Sacks and bags: Of
polymers of ethylene, Other: Other,
dutiable at 3 percent ad valorem,
or
3923.29.0000 (if composed of
polymers other than ethylene)-
Articles for the conveyance or
packing of goods, of plastics
...Sacks and bags: Of other
plastics, dutiable at 3 percent ad
valorem.
NYRL's 832556 and 836965 are modified accordingly. NYRL
876442 is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division
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