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HQ 083168

April 8, 1991

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


TARIFF NO.: 9503.41.1000

Mr. Ken August
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.


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.


Is the stuffed pumpkin a festive article of heading 9505, HTSUSA?

If not, where is it classified?


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.


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


John A. Durant
Commercial Rulings Division

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