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HQ 085847

February 9, 1990

CLA-2 CO:R:C:G 085847 WAW


TARIFF NO.: 9505.10.5000

Joel K. Simon, Esq.
Serko & Simon
One World Trade Center - Suite 3371
New York, N.Y. 10048

RE: Reconsideration of N.Y. Ruling letter 839586 concerning the classification of "Christmas Ceramic Magnets"

Dear Mr. Simon:

This letter is in response to your request for a reconsideration of N.Y. Ruling Letter 839586, dated June 22, 1989, on behalf of your client Russ Berrie & Company, Inc., concerning the tariff classification of "Christmas Ceramic Magnets" under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Six sample ceramic magnets were submitted with your request along with photographs of similar ceramic magnets.


The sample merchandise submitted consists of two different style numbers. Item #5362 is an earthenware, heart-shaped, magnet holder approximately 3-1/4 inches wide, 3 inches long, and 1/4 inch thick. The design on the front of the magnet is a red and green Christmas holly wreath. This item can be purchased with the following Christmas messages: "Have a Special Christmas," "Merry Christmas," and "Friends Make the Holidays Happy." A circular-shaped magnet one inch in diameter is affixed to the reverse side of the magnet holder.

Item #5383 is an earthenware, circular-shaped, magnet holder approximately 3 inches in diameter and 1/4 inch thick. On the front of one of the sample magnet holders is a teddy bear with a red bow seated next to a Christmas present. The words "You're Very Special" are printed above the bear. On the other sample magnet holder is a Santa Claus holding a miniature Christmas tree. The words "Christmas Brings Us Near In Heart" are printed above the Santa Claus. A circular shaped magnet one inch in diameter is affixed to the reverse side of the magnet holder. Analysis by the Customs Laboratory confirms that the magnet in each item consists of ceramic material.

Counsel for the importer maintains that both items #5362 and #5383 are specially designed, manufactured, imported, advertised, and marketed as Christmas articles. Counsel further contends that the magnet holders may be placed on metal objects in the home such as kitchen refrigerator doors in order to hold children's Christmas drawings, Christmas shopping lists, Christmas cards, or letters to Santa. Thus, it is counsel's position that the articles are properly classified in subheading 9505.10.5000, HTSUSA, as "festive articles."


Whether the subject merchandise is a "festive article" properly classified under subheading 9505.10.5000, HTSUSA, or whether it is more properly classified under some other provision of the tariff schedule?


The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

The sample merchandise may be classified under several possible headings in the nomenclature. Heading 8505, HTSUSA, provides for electro-magnets, permanent magnets and articles intended to become permanent magnets after magnetisation. The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, state that heading 8505, HTSUSA, does not cover "electro-magnets, permanent magnets or magnetic devices of this heading, when presented with machines, apparatus, toys, games of which they are designed to form part (classified with those machines, apparatus, etc.)." With respect to the merchandise at issue, it is a magnet designed to form part of the article. Since the magnet is presented with and incorporated into a ceramic holder, it is precluded from classification in this heading.

Heading 6912, HTSUSA, provides for ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china. This heading is applicable to the sample article because the ceramic magnet is designed to be used in the kitchen or in other areas of the home. Heading 9505, HTSUSA, provides for festive, carnival or other entertainment articles. This heading is also applicable since the ceramic magnet is decorated with festive motifs that are traditionally associated with the Christmas season. GRI 3(a) provides that:

When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

In the instant case, each of the headings refers to part only of the merchandise at issue. Therefore, the headings are to be regarded as equally specific, and the classification of the merchandise at issue cannot be determined by application of GRI

GRI 3(b) provides that composite goods made up of different materials or made up of different components, which cannot be classified by reference to GRI 3(a), shall be classified as if they consisted of the material or component which gives them their essential character. According to Explanatory Note VIII to GRI 3(b), the essential character of an article 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 goods.

In the instant case, it is our position that no single component imparts the essential character to the sample article. Here, the subject articles are partially comprised of a ceramic housing component that is decorated with festive motifs which are traditionally associated with the Christmas season. Although the articles are designed, manufactured and advertised as Christmas decorative articles, they also are utilitarian magnets designed to secure or fasten papers to a metal surface. Accordingly, we have concluded that neither the "festive article" provision nor the "other household article" provision more specifically describes the merchandise at issue. Thus, classification cannot be determined based on the application of GRI 3(b).

When, as in the instant case, the component which gives the goods at issue their essential character cannot be determined, classification is ascertained by utilizing GRI 3(c). GRI 3(c) provides:

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Applying GRI 3(c), the ceramic magnets are classifiable under subheading 9505.10.5000, HTSUSA, since this heading appears last in numerical order among the headings under consideration.


In view of the foregoing, the sample ceramic Christmas magnetic memo holders are classifiable under subheading 9505.10.5000, HTSUSA, which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: other. Items classified under this subheading are subject to a rate of duty of 5.8 percent ad valorem.

N.Y. Ruling Letter 839586, dated June 22, 1989, is hereby modified.


John Durant, Director

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