CLA-2 CO:R:C:F 956261 LPF
Mr. Marvin Double
Double Enterprises
10520 Yonge St., Unit 35B, Suite 312
Richmond Hill, Ontario L4C 3C7
Canada
RE: Silly Sprays Novelty Items; Heading 2851, Other inorganic
compounds, including distilled water; Not 9503 toys; Not
9505 practical joke articles
Dear Mr. Double:
This is in response to your letter of March 12, 1994,
requesting the proper classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of Silly Sprays
novelty items. You submitted a sample as well as photographs with
your request for a binding ruling.
FACTS:
The merchandise consists of plain distilled water pressurized
with nitrogen, put up in a can. When the nozzle is pushed, a spray
of water is emitted. The product, which is available in four
varieties, serves as a novelty gift or souvenir. "Birthday
Repellent" might be a gift for an individual unhappy about facing
another birthday. "Instant Vacation" and "Weekend Extender" would
be intended for an individual without leisure or vacation time.
"Personal Space" might be a gift for a highly stressed individual.
ISSUE:
Whether the Silly Sprays are classifiable within heading 9503
as toys; heading 9505 as practical joke articles; heading 2851 as
other inorganic compounds, including distilled water; or elsewhere
in the HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
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merchandise under the HTSUS. Most imported 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. 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 HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
Two headings worthy of consideration in this case are heading
9503 providing for toys and heading 9505 providing for, among other
things, practical joke articles. With regard to heading 9503, the
ENs to Chapter 95 indicate that "this chapter covers toys of all
kinds whether designed for amusement of children or adults." It
has been Customs position that the amusement requirement means that
toys should be designed and used principally for amusement. See
Additional U.S. Rule of Interpretation 1(a), HTSUSA. Customs
defines principal use as that use which exceeds each other single
use of the article. In this case, since the articles will not be
principally used as toys, they are not classifiable within heading
9503. In our opinion, the articles do not provide the manipulative
play value or frivolous entertainment characteristic of toys.
With regard to heading 9505, the EN indicate that, among other
things, the heading includes:
(B) Conjuring tricks and novelty jokes, e.g., packs
of cards, tables, screens and containers, specially
designed for the performance of conjuring tricks;
novelty jokes such as sneezing powder, surprise
sweets, water-jet button-holes and "Japanese flowers."
In determining whether merchandise qualifies as a practical
joke article, Customs has utilized the standard articulated in
Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408 C.D.
4304 (1970). In that decision, 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."
Accordingly, in Headquarters Ruling Letters (HRLs) 952472,
issued February 8, 1993 and 950564, issued March 13, 1992, a
Strobie Ghost consisting of a battery operated ghost figure
emitting screams and flashing lights and Mr. Piddle Bib, a penal
bib with brightly colored tie strings to be worn around one's hips,
both were classified as other than practical joke articles. On the
contrary, in HRLs 953187, issued August 5, 1993, 953188, issued May
18, 1993, and 089529, issued October 1, 1991, rubber squirt figures
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which when squeezed emitted water from the figure's mouth and Weepy
the Wee Wee consisting of a figure which, when his pants were
pulled down, would squirt water out from a hole in the front pelvic
area, were classified as practical joke articles. In the latter
decisions, as opposed to the former decisions, Customs maintained
that the merchandise would surprise and/or trick an individual,
placing them at a humorous disadvantage.
It is our opinion that the subject merchandise, although
humorous, does not surprise and/or trick an individual nor place
one at a humorous disadvantage. In accordance with the definition
articulated in the Parksmith case as well as the applicable EN, the
Silly Spray novelties do not qualify as practical joke articles and
must be classified elsewhere.
Heading 2851, HTSUSA, provides for, inter alia, other
inorganic compounds, including distilled water. The EN to 2851
indicate that, "the heading covers only distilled water, re-
distilled or electro-osmotic water, conductivity water and water
of similar purity, including water treated with ion exchange
media." Because it is our understanding that the Silly Sprays are
comprised of plain distilled water, the terms of the heading as
confirmed by the applicable EN indicate that the articles are
classifiable, pursuant to GRI 1, within heading 2851.
HOLDING:
The Silly Sprays are classified in subheading 2851.00.0090
as, "Other inorganic compounds (including distilled or conductivity
water and water of similar purity)..., Other." The general column
one rate of duty is 2.8 percent ad valorem.
Advance rulings specifically may be requested with respect to
prospective, current, and ongoing North American Free Trade
Agreement (NAFTA) transactions from the Office of Regulations and
Rulings or the Area Director of Customs, New York Seaport. In this
regard, it is suggested that you consult the procedures relating
to advance NAFTA rulings in interim regulations 19 C.F.R. 181,
Subpart I, as published in the Federal Register of December 30,
1993.
Sincerely,
John Durant, Director
Commercial Rulings Division