CLA-2 CO:R:C:F 953187 GGD
Ms. Karin M. Burke
Serko & Simon
One World Trade Center, Suite 3371
New York, New York 10048
RE: "Squirts;" Small Rubber Roto-molded Figures that Squirt when
Squeezed; Not Imitation Jewelry; Not Toys
Dear Ms. Burke:
This letter is in response to your inquiry of January 4,
1993, on behalf of your client, Russ Berrie and Co., Inc.,
concerning the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of articles
identified as "squirts," to be imported from China. Samples were
submitted with your request. Information as to marketing and
retail packaging was subsequently submitted.
FACTS:
The sample figures are identified by four separate item
numbers. Item no. 18003 is a small round figure in the shape of
a fish. It measures approximately 1-1/2 inches in height and has
bulging cheeks and a pursed mouth. Item no. 18168 is a small
round, smiling figure in the shape of a human head. The figure
wears a graduate's mortarboard and measures approximately 1-3/4
inches in height.
(Each of the remaining items has a molded rubber ring on its
head, through which an elasticized, man-made, woven textile cord
is looped in order to suspend or carry the article. The looped
cords measure approximately ten to thirteen inches in length.)
Item no. 18093 is a small, rounded figure in the shape of an
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octopus, measuring approximately 2-1/4 inches in height by 1-1/2
inches in width. An alternative style for item no. 18093 is a
penguin figure which measures approximately 2-1/2 inches in
height by 2-1/4 inches in width. Item no. 19613 is a small
figure of a "Cupid" bear seated on a cloud, with tiny wings and a
bow and arrow. The figure measures approximately 2-1/2 inches in
height by 1-3/4 inches in width. An alternative style for item
no. 19613 is a small devil figure, with molded cape, trident,
horns, and measurements similar to those of the bear.
All of the items identified above are hollow and comprised
of rubber. Each figure has a tiny hole in its mouth, except for
the bear, whose arrow tip contains the tiny hole. After a figure
is submerged in water, compressed to empty its air, and allowed
to fill, it is capable of squirting water out through the same
tiny hole.
ISSUE:
Whether the items should be classified as toys, as imitation
jewelry, or as practical joke articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). 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 (ENs) 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 GRIs.
Heading 9503, HTSUSA, applies to "other toys," i.e., all
toys not specifically provided for in the other headings of
chapter 95. Although the term "toy" is not defined in the
tariff, the EN to chapter 95 indicates that a toy is an article
designed for the amusement of children or adults. The ENs to
heading 9503 indicate that among other toys, the heading covers
toys representing animals or non-human creatures even if
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possessing predominantly human physical characteristics (e.g.,
angels, robots, devils, monsters). Although it is apparent that
the graduate and devil/animal figures were designed for
amusement, they may also function to trick or surprise
unsuspecting individuals. As noted above, classification in
heading 9503, HTSUSA, may be inapplicable to items that are
specifically provided for in other headings of chapter 95.
Heading 9505, HTSUSA, provides, in part, for "entertainment
articles, including magic tricks and practical joke articles...."
The EN to heading 9505 states, in part, that the heading includes
novelty jokes such as sneezing powder, surprise sweets, water-
jet button-holes and "Japanese flowers." We note that in
Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408,
C.D. 4304 (1970), the court reviewed several dictionary and court
case definitions of the term "practical joke," determining that a
practical joke article is one which causes humor by "somehow
placing an individual at a disadvantage through a trick or
prank."
In Headquarters Ruling Letter (HRL) 953188, issued May 18,
1993, Customs classified several squirting figures as practical
joke articles in subheading 9505.90.20, HTSUSA. There are,
however, several differences between those figures and the items
described above. These items: 1) contain no stopper-type plug,
making them more difficult to fill/refill; 2) are approximately
one half the size of the joke articles; 3) hold one half the
water of the joke articles; 4) squirt several feet less than the
joke articles; and 5) if worn around the prankster's neck, the
items: a) are less likely to be handled by an unsuspecting
person; and b) if handled and squeezed, the prankster is nearly
as likely to get wet as the individual supposedly placed at a
disadvantage.
Calling attention to No. 5 above, it appears that the more
likely the items with cords will be worn about the neck, the less
likely they may be deemed practical joke articles. Without
ruling out classification of the goods in heading 9505, it is
helpful at this point, to examine competing heading 7117, HTSUSA,
which provides for imitation jewelry. Legal Notes 8 and 10 to
Chapter 71 indicate that the expression "imitation jewelry"
includes any small objects of personal adornment, gem-set or not,
such as rings, bracelets, necklaces, brooches, earrings, watch
chains, fobs, pendants, etc.
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Although different from most of the example objects of
personal adornment, if worn around the neck, the small squirts
may function as pendants. In HRL 952296, issued December 15,
1992, Customs considered heading 7117, HTSUSA in determining the
proper classification of a plastic, fish-shaped water gun
suspended from a long textile cord. It was noted that the
American Heritage Dictionary, Second College Edition (1985),
defines a pendant as "something suspended from something else,
esp. an ornament or piece of jewelry attached to a necklace or
bracelet." The water gun was found not to be an ornamental
article or piece of jewelry, but a toy. The principal use of the
textile cord was found to be for handling or carrying the
squirting toy, not for wearing the item (as a necklace would
provide a means to wear a pendant).
In this case, we also find that the textile cords
principally serve to handle or carry the small squirts. However,
unlike the fish-shaped toy water gun discussed above, the small
squirt has no trigger or apparent indicator of its ability to
squirt water. We note that despite their decreased size, range,
water capacity, and lack of stoppers, the small squirts are as
likely as the larger squirts to set up unsuspecting individuals
for a wet surprise, and are properly classified as practical joke
articles.
HOLDING:
The small "squirts" articles identified as item nos. 18003,
18168, 18093, and 19613 are properly classified in subheading
9505.90.20, HTSUSA, the provision for festive, carnival or other
entertainment articles, other, magic tricks and practical joke
articles. The general column one duty rate applicable to this
merchandise is 5.8 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division