HQ 089956

May 11, 1992

CLA-2 CO:R:C:F 089956 STB

CATEGORY: Classification

TARIFF NO.: 9503.90.5000

District Director of Customs

P.O. Box 619050

1205 Royal Lane

Dallas, Texas 75261

RE: Decision on Application for Further Review of Protest No.

5501-90-100482, filed July 26, 1990, concerning the

classification of metallic balloons.

Dear Sir:

This is a decision on a protest filed July 26, 1990, against

your decision on the classification and liquidation of twenty-

nine (29) different entries of metallic balloons that were made

between the dates of July 7, 1989 and February 23, 1990. The

entries were all liquidated on April 27, 1990.

FACTS:

You classified the subject metallic balloons in subheading

9503.90.5000, Harmonized Tariff Schedule of the United States

(HTSUSA), the provision for other toys, other, other, inflatable

toy balls, balloons and punch balls. The applicable duty rate

for that provision is 6.8 percent ad valorem. Protestant claims

that the merchandise should be classified under subheading

9505.90.6000, HTSUSA, the provision for festive, carnival or

other entertainment articles, other, other, dutiable at 3.1

percent ad valorem.

The balloons in question are described by the protestant as

\"aluminum-coated mylar envelopes of various shapes and sizes.\"

They are sold at the retail level for a variety of uses but,

according to the importer, they are primarily marketed as

greetings and as decoration for festive occasions. The

importer\'s submission states that the subject merchandise

consists of aluminum-coated mylar envelopes imprinted with such

legends as \"Happy Birthday\" and \"Happy Anniversary\" while others

display stylized drawings of licensed characters such as Garfield

and Snoopy. Counsel for the importer stated in a meeting with

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Customs Headquarters personnel that the importer does not possess

the rights to licensed characters such as Garfield, and therefore

invents its own characters but concentrates mostly on festive and

greeting themes. A review of the entries under protest

indicates many types of balloons, including balloons described as

\"Welcome Back\" balloons, \"Thank You\" balloons, \"Be My Valentine\"

balloons, \"Teddy Beddy Boy\" balloons, and plain, red balloons.

The three samples that were submitted to Customs all convey

Christmas/Holiday related messages and are predominantly

decorated in Christmas related colors. Counsel also stated that

the aluminum construction of this merchandise helps the items

maintain inflation for a long period of time and thus sets them

apart from latex balloons.

ISSUE:

Whether the subject merchandise should be classified under

subheading 9503.90.5000, HTSUSA, the provision for balloons or

under subheading 9505.90.6000, HTSUSA, the provision for festive,

carnival or other entertainment articles?

LAW AND ANALYSIS:

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 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\'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.

The protestant has claimed classification in heading 9505,

HTSUSA. Heading 9505 provides, in pertinent part, for

\"\[f\]estive, carnival or other entertainment articles.\" The EN\'s

to heading 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,

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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.

\(2\) Articles traditionally used at Christmas

festivities, e.g., artificial Christmas trees

(these are sometimes of the folding type),

nativity scenes, Christmas crackers, Christmas

stockings, imitation yule logs.

\* \* \*

Articles classifiable in heading 9505, HTSUSA, tend to have no

function other than decoration.

Heading 9505 is generally regarded as a use provision.

Consequently, Additional U.S. Rule of Interpretation 1(a) must be

reviewed. That rule indicates that:

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.

It is our determination that this merchandise is not

classified in heading 9505, HTSUSA. The various items that are

the subject of this protest display different motifs, including

not only Christmas and other holiday related themes but also

general greeting motifs and \"themeless\" motifs that could be

considered cute, humorous, or amusing, but are not related to any

specific festive occasion or greeting. Some of the balloons have

no message or picture. Regardless of motif, however, these items

are basically balloons. Balloons, as a class or kind of

merchandise, are not \"traditionally associated with a particular

holiday\" as required by the EN\'s; they are sold year-round in a

variety of motifs, as illustrated by the variety of balloons that

are the subject of this protest. Additionally, balloons are not

\"traditionally used at Christmas festivities\", also mentioned by

the EN\'s as a possible mode of inclusion in heading 9505, HTSUSA.

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The protestant discusses several prior Customs rulings in

which various items were classified as festive articles in

heading 9505, HTSUSA, and argues that these rulings are analogous

to the current protest. Examination of those rulings, however,

reveals that the merchandise discussed therein can be readily

distinguished from the balloons presently considered.

We next consider classification in heading 9503, HTSUSA, and

specifically in subheading 9503.90.5000, HTSUSA, which provides

eo nomine for \"Other toys\...Inflatable toy balls, balloons and

punchballs.\" The EN\'s to Chapter 95 indicate that \"this chapter

covers toys of all kinds whether designed for the amusement of

children or adults.\" The phrase \"designed for the amusement of\"

is generally understood to indicate the use of an article will be

a factor when classification in Chapter 95 is being considered.

We again refer to Additional U.S. Rule of Interpretation 1(a),

supra. It is our determination that balloons as a class or kind

of merchandise, as well as the particular balloons at issue here,

are indeed designed for the amusement of children or adults and

that obtaining amusement is the principal use of this

merchandise.

As described above, many of the subject balloons have no

greeting or festive related message/picture and thus have little

use other than amusement. The balloons that do display such

messages and pictures are not transformed from their basic status

as balloons. The protestant contends that the balloons are

indeed transformed by the printed material in those instances and

cites Headquarters Ruling Letter (HRL) 086745, dated July 3,

1990, in which Customs classified a plastic, business-like card

as \"other printed matter\" rather than as a toy. That merchandise

consisted of a piece of plastic resembling a credit card in size

and composition. One side of the card contained information

similar to that found on a business or calling card. The other

side of the card contained a temperature and pressure sensitive

thumb-print size square of plastic sheeting, for use as a novelty

device to \"measure\" body temperature to determine stress,

tenseness, etc. Customs determined that \"the printed information

on the cards provides the essential purpose and use for the

goods\" and that the \"stress-test\" is just a gimmick to draw

attention to the cards.

HRL 086745 can be distinguished from the present matter,

however, in that the plastic cards described in that ruling would

have little value were it not for the printed messages that could

be displayed thereon. Balloons, on the other hand, have a well

known and established use for amusement purposes regardless of

the message or picture displayed. This distinction is supported

in two prior Customs rulings, HRL 062114, dated April 12, 1979,

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and New York Ruling (NY) 814645, (1985). These rulings held that

various balloons, although imprinted with advertising messages,

were nevertheless classified in the TSUSA provision for toys.

Although the rulings were based on the TSUSA language, it is very

similar to the language of the present EN. We thus conclude that

the messages and pictures displayed on a portion of the subject

balloons do not remove the merchandise from classification as

balloons in the toy provision. This question does not arise, of

course, in the consideration of the plain balloon entries. As

for the balloons that display only some type of cute character,

their amusement value, and thus their identity as a toy, is

increased by the picture.

HOLDING:

The metallic balloons are classified in subheading

9503.90.5000, HTSUSA, the provision for other toys, other, other,

inflatable toy balls, balloons and punchballs, dutiable at the

column 1 rate of duty of 6.8 percent ad valorem.

The protest should be denied. A copy of this decision

should be attached to the Form 19 to be returned to the

protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division