HQ 951141: Modification of NYRL 848220; Textile heart with stuffed bears in 9503 HTSUSA; Other toys (representing animals); Not 9505 festive article

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 951141

                        February 1, 1993

CLA-2 CO:R:C:F 951141 LPF

CATEGORY: Classification

TARIFF NO.: 9503.41.1000

Ms. Lori Aldinger
Rite Aid Corporation
P.O. Box 3165
Harrisburg, PA 17105

RE:  Modification of NYRL 848220; Textile heart with stuffed
     bears in 9503 HTSUSA; Other toys (representing animals); Not
     9505 festive article

Dear Ms. Aldinger:

     In New York Ruling Letter (NYRL) 848220, a textile heart
with stuffed bears 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 is a textile heart with two stuffed
bears.  The five inch, plush, stuffed textile heart has lace trim
and a pocket across the front.  Inside the pocket, protruding
from the top are two small stuffed bears.  Across the front of
the pocket are the words "Love is being...together!"  Attached
between the two arcs that form the top of the heart is a red cord
and a suction cup.

ISSUE:

     Whether the textile heart and stuffed bears are classifiable
in heading 9505 as festive articles, in heading 6307 as other
made up (textile) articles, or in heading 9503 as other toys
(representing animals).











                               -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 good 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.
     
     When examining the textile heart and bears, as a whole, it
is evident that the article is not traditionally associated or
used with a particular festival.  It is 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.  The subject article must be
classified elsewhere.

     The textile heart with stuffed bears consists of two
components which are classifiable as follows.  The textile heart
is classifiable in heading 6307 which provides for other made up
textile articles.  The stuffed bears are classifiable in heading
9503 which provides for other toys.  The EN's to 9503 indicate
that the heading covers, "toys representing animals...."  Since
separate HTSUSA headings provide for each of these components,
the article is classified by applying GRI 3(a) which explains, in
pertinent part, that articles which are classifiable under two or
more headings are 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 article.

     Each of the possible headings, in this case, refers to only
part of the article.  Since the headings are, thus, regarded as
equally specific, we do not classify the article by GRI 3(a) but
next turn to GRI 3(b).

     GRI 3(b) provides that articles made up of different
components, that is, composite goods, shall be classified as if
they consisted of the component which gives them their essential
character.  "Essential character" is the attribute which strongly
marks or serves to distinguish what an article is.  EN VIII to
GRI 3(b) explains that bulk, quantity, weight, value or the role
of a constituent material in relation to the use of the article
are indicia of essential character.  It is Customs understanding
that both the textile heart and stuffed bears contribute
significantly to the bulk and weight of the article. 
Furthermore, from the information provided, it appears that,
based on use, neither component of the article imparts essential
character; rather both components equally contribute to the
design of the article. 




                               -4-

     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 article, therefore, is
classifiable in heading 9503, the provision which occurs last in
numerical order.  The applicable subheading is 9503.41.1000.

HOLDING:

     The textile heart with stuffed bears is classifiable in
subheading 9503.41.1000, HTSUSA, as "Other toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; and accessories thereof: Toys representing
animals or non-human creatures...and parts and accessories
thereof: Stuffed toys and parts and accessories thereof: Stuffed
toys."  The general column one rate of duty is 6.8 percent ad
valorem.  However, any duty on the article is temporary suspended
under subheading 9902.95.02, HTSUSA.  At the present time, the
duty suspension is scheduled to expire on December 31, 1992.

     This notice should be considered a modification of NYRL
848220 pursuant to 19 CFR 177.9(d)(1).  It is not to be applied
retroactively to NYRL 848220 (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 848220 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, you may 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