United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2005 NY Rulings > NY L86786 - NY L86839 > NY L86791

Previous Ruling Next Ruling
NY L86791




August 10, 2005

CLA-2:RR:NC:SP:225 L86791

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.0000; 4823.90.6600

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

Dear Ms. Aldinger:

In your letter dated July 28, 2005, you requested a tariff classification ruling.

You submitted a sample of a “Valentine Fun Assortment” identified as assortment number 942531, which is being returned upon your request, and consists of “Valentine Fun Sand Art”, “Valentine Fun Velvet Treasures”, “Valentine Fun Greeting Cards” and “Valentine Fun Velvet Cards.”

“Valentine Fun Sand Art” is a toy craft kit that is comprised of two sheets of adhesive paper, six polybags filled with assorted colored sand, and six assorted colored markers packaged together inside an illustrated cardboard box with a window display. To create the "art", the child peels away the top layer of the adhesive paper and exposes the sticky surface. This sticky surface will have an outline of either Cupid holding a bow and arrow surrounded by hearts and the words “Happy Valentine’s Day” or an outline of a smiling creature standing next to hearts, one of which is marked, “I Love You.” The child will then sprinkle the colored sand onto the outline and complete the colorful picture. The toy craft kit is intended for a child three years of age and older with no previous artistic ability required.

“Valentine Fun Velvet Treasures” is a set that is comprised of two velvet lidded boxes (one round, one heart-shaped) and six assorted colored mini markers packaged together inside an illustrated cardboard box with a window display. The round box measures approximately 2-3/4” in diameter and ½” in depth and the heart-shaped box measures approximately 3-1/4” across and ¾” in depth. The velvet boxes are made of coated paper and depict white abstract designs against a black background. A child three years of age and older will use the mini markers to color the abstract designs to create colorful “treasure” boxes.

Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied. Since the “Valentine Fun Velvet Treasures” is comprised of different articles, GRI 3 is applicable. Its relevant portions read as follows:

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 . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete description of the goods.

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking. Goods classifiable under GRI 3(b) are classified as if they consisted of the material or component which gives them their essential character, which 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.

The “Valentine Fun Velvet Treasures” meets this three-part criteria test for a set. The velvet boxes and mini markers are classifiable in different headings. The articles are put up together to enable the user to engage in a coloring activity, and the goods are imported in retail packaging. This office considers the “Valentine Fun Velvet Treasures” to be a set for tariff classification purposes, with the essential character imparted by the velvet boxes. The velvet boxes are the dominant articles in terms of use, and the reason one would purchase the set.

The applicable subheading for the “Valentine Fun Sand Art” of the “Valentine Fun Assortment” will be 9503.70.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys, put up in sets or outfits, and parts and accessories thereof. The rate of duty will be Free.

The applicable subheading for the “Valentine Fun Velvet Treasures” of the “Valentine Fun Assortment” will be 4823.90.6600, HTS, which provides for other (non-enumerated) articles of coated paper or paperboard. The rate of duty will be Free.

We are unable to issue a ruling at this time on the “Valentine Fun Greeting Cards” or the “Valentine Fun Velvet Cards” as they involve consideration of whether the merchandise may be classifiable in Chapter 95 as “festive.”

On June 29, 2005, a proposal to limit the court decisions in Park B. Smith, Ltd. V. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), rehearing denied (Fed. Cir. March 16, 2004), was published in the Customs Bulletin. CBP will notify the public in the Customs Bulletin when the agency has completed its review of its position in light of comments received in response to this notice. In addition, there are currently pending several cases before the Court of International Trade involving the question of classification of merchandise as “festive” in Chapter 95 of the Harmonized Tariff Schedule of the United States.

Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal therefrom.

As such, CBP will not issue a classification ruling with regard to your merchandise at this time. The classification determination may be impacted by the agency’s position regarding the court decisions in Park B. Smith, supra. In addition, issuance of a classification ruling would be inconsistent with 19 C.F.R. §177.7(b), cited above.

The court cases currently pending in the Court of International Trade which may preclude issuance of a ruling on the subject merchandise include cases involving the classification of sweaters and blouses, textile and plastic bows, glassware, tableware and bakeware. See Michael Simons Designs, Inc. v. United States, Ct. No. 04-00537; Berwick Industries, Inc. v. United States, Ct. Nos. 98-12-03189, 96-01-00263, 99-01-000436, 99-03-00121, 99-03-00158, 99-06-00356, 98-09-02897, 97-05-00789, 97-06-00983, 97-08-01400, 96-12-0738, 96-05-01359, and 96-04-01197; Waterford Wedgwood USA, Inc. v. United States, Ct. Nos. 00-05-00215, 99-03-00133 and 99-11-00721; Cuthbertson Imports Inc. v. United States, Ct. No. 03-00846; and Wilton Industries, Inc. v. United States, Ct. Nos. 00-11-00528, 00-01-00218, 00-03-00014, 00-03-00015, 00-04-00193, 00-04-00194 and 00-04-00250.

If you wish, you may resubmit your request for a prospective ruling on the “Valentine Fun Greeting Cards” or the “Valentine Fun Velvet Cards” after CBP issues a final determination with regard to its proposal to limit Park B. Smith, supra. However, in keeping with an importer’s responsibility to exercise reasonable care, you may wish to check the status of pending court cases involving the issue of classification of merchandise as “festive articles” of heading 9505, HTSUS, and assess the possible impact on the classification of your merchandise. If you choose to resubmit your request for a ruling, CBP will consider at that time whether pending cases before the Court of International Trade or the Court of Appeals for the Federal Circuit preclude issuance of a ruling. The file regarding the “Valentine Fun Greeting Cards” or the “Valentine Fun Velvet Cards” is hereby administratively closed.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice Wong at 646-733-3026.

Sincerely,

Robert B. Swierupski
Director,

Previous Ruling Next Ruling

See also: