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HQ 967807




November 28, 2005

CLA-2 RR:CTF:TCM 967807 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Port Director
Customs and Border Protection
P.O. Box 619050
Dallas Fort Worth Airport, TX 75261-9050

RE: Internal Advice Request No. 05/013; Classification of “Just Married” Car & Window Clings.

Dear Port Director:

This ruling is in response to a request for Internal Advice initiated by Evans and Wood & Co., Inc., on behalf of their client, Hobby Lobby Stores. At issue is the proper classification of “Just Married” car and window clings. The request for Internal Advice stems from an entry of car and window clings classified at the time of entry in subheading 3919.90.50 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You now believe that the clings should be classified in subheading 4911.91.4040, HTSUSA. The request for internal advice is sought based on the importer’s disagreement with the proposed classification. The importer asserts that classification is proper in subheading 9505.90.6000, HTSUSA. A sample has been sent with the request.

FACTS:

At issue is a five-piece retail package of static-cling “just married” window and car cling signs printed on clear plastic film. The “just married” signs are grouped onto three sheets comprising five signs. The sheets measure 17” by 11 ¾”, 8 ½” by 11 ¾” and 17” by 5 3/8”, respectively. Each sign is designed to be peeled off its slick paper backing and placed on a nonporous surface for display. An illustration on the packaging shows the signs being displayed on both the rear window and the body of an automobile. The user is instructed to “clean auto or window surface with a damp cloth,” and to “press car and window-cling to moist surface and smooth from center.” Since the signs are not coated with any adhesive and are not tacky, it appears that they will adhere to chosen surfaces solely by the action of moisture and/or static electricity. The instructions also note that the signs may be removed and reused.

ISSUE:

Whether the clings are classifiable as “Festival, carnival or other entertainment articles” under heading 9505, HTSUSA, or as printed matter under heading 4911, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The Chapter Notes to chapter 49, provide the following in pertinent part:

1. This Chapter does not cover :

(c) Playing cards or other goods of chapter 95; .

Thus, the car/window clings must be excluded from classification within Chapter 95 before consideration may be given to classification in chapter 49.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate, in relevant part, 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:

Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).

(4) Throw-balls of paper or cotton-wool, paper streamers (carnival tape), cardboard trumpets, "blow-outs", confetti, carnival umbrellas, etc.

In Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed.Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUS, as a “festive article” when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

3. Is associated with or used on a particular holiday.

The subject clings do not meet the criteria for festive articles because they are not traditionally associated with or used on a particular holiday, i.e., Christmas. See, HQ 962434, dated November 19, 1999. However, pursuant to GRI 1, the terms of the heading and the EN's indicate that the clings, which are non-durable, are classifiable within 9505 as entertainment articles. See NY I87839, dated October 25, 2002.

At the subheading level 9505.90.2000, HTSUSA, provides for magic tricks and practical jokes; subheading 9505.90.4000, HTSUSA, provides for confetti, paper spirals or streamers, party favors and noisemakers; while 9505.90.6000, HTSUSA, provides for other festive, carnival or entertainment articles not already provided for in prior subheadings. The clings are not magic tricks or practical jokes nor are they confetti, paper spirals, streamers, party favors or noisemakers. The language in the subheadings and EN's indicates that the clings fit the description of the non-durable entertainment or party-type articles classifiable in subheading 9505.90.6000, HTSUSA, as they are not named in either of the preceding subheadings.

HOLDING:

The “Just Married” car and window clings are classified in subheading 9505.90.6000, HTSUSA, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: other.” The general column one rate of duty is Free.

You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home

Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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