CLA-2 RR:CR:GC 961530 MMC
Mr. Allen Sanft
Shelcore Toys
347 Elizabeth Avenue
Somerset, N.J. 08873-1101
RE: "Super Snake" water sprinkler; NYRL B86181 revoked
Dear Mr. Sanft:
This is in reference to New York Ruling Letter (NYRL) B86181
dated July 10, 1997, issued to Shelcore Toys, concerning the
classification of an article described as "Super Snake" (item
02693) under subheading 3926.90.9890, of the Harmonized Tariff
Schedule of the United States (HTSUS), as other articles of
plastic. Catalog pictures of the article were submitted for our
review. In preparing this ruling we have considered the
information in your supplemental letter of June 11, 1998.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625 (c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of
the proposed revocation was published on September 16, 1998, in
Volume 32, Number 37 of the Customs Bulletin. No comments were
received in response to this notice.
FACTS:
"Super Snake" is a snake-shaped inflatable water sprinkler.
It has a yellow base with a bright pink and green pattern over
the base. It measures 4 feet long and sprays water up to 15 feet
high. A round piece of threaded plastic sized to match a
standard garden hose, is attached to the back of the article. As
"Super Snake" fills with water, pressure builds forcing water out
of the small perforations on the top of the article.
According to the information furnished, "Super Snake" is
designed and imported exclusively for Shelcore Toys and
advertized on such stations as TNT, The Family Channel and
Nickelodeon. The product line to which "Super Snake" belongs was
researched and designed to target children and their parents.
The catalog with product sheets describes "Super Snake" as: "This
"ferocious" snake is really a softy! Stretching 4 feet in
length, this vividly colored sprinkler sprays water up to 15 feet
high. Parents simply inflate and then connect it to a standard
hose to watch the splish-splash fun begin. Splish and splash fun
for the yard with Super Snake Sprinkler. Ages Over 3 years and
up."
ISSUE:
Whether "Super Snake" is classifiable as a toy under heading
9503, HTSUS, as other plastic household articles under heading
3924, HTSUS, or as other plastic articles under heading 3926,
HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the HTSUS 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 headings under consideration are as
follows:
3924 Tableware, kitchenware, other household articles and
toilet articles, of plastics
3926 Other articles of plastics and articles of other
materials of headings 3901 to 3914
9503 Other toys; reduced-size ("scale") models and
similar recreational models, working or not;
puzzles of all kinds; parts and accessories
thereof
Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter does
not cover:...[a]rticles of chapter 95 (for example, toys, games,
sports equipment.)." Therefore, we must first determine whether
"Super Snake" is classifiable as a toy for tariff purposes. If
so, it is excluded from classification in subheadings 3924 and
3926, HTSUS, by operation of Note 2(v) to Chapter 39.
The term "toy" is not defined in the HTSUS. However, in
understanding the language of the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System
may be utilized. The ENs, although not dispositive or legally
binding, provide a commentary on the scope of each heading, and
are generally indicative of the proper interpretation of the
HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to Chapter 95 state, in pertinent part, that "[t]his
Chapter covers toys of all kinds whether "designed for the
amusement of children or adults." Although not set forth as a
definition of "toys," we have interpreted the just-quoted passage
from the ENs as equating "toys" with articles "designed for the
amusement of children or adults," although we believe such design
must be corroborated by evidence of the articles' principal use.
When the classification of an article is determined with
reference to its principal use, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that, in the absence of
special language or context which otherwise requires, such 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. In other words, the
article's principal use at the time of importation determines
whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual
tariff provisions. However, the courts have provided factors,
which are indicative but not conclusive, to apply when
determining whether merchandise falls within a particular class
or kind. They include: general physical characteristics, the
expectation of the ultimate purchaser, channels of trade,
environment of sale (accompanying accessories, manner of
advertisement and display), use in the same manner as merchandise
which defines the class, economic practicality of so using the
import, and recognition in the trade of this use. United States
v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373
(1976), cert. denied, 429 U.S. 979.
In NYRL A86380 dated August 13, 1996, Customs classified a
series of water sprinklers designed for use in watering lawns and
gardens in 3924.90.5500, HTSUS. Unlike the lawn sprinklers
classified in NYRL A86380, the physical characteristics of "Super
Snake," mainly its bright colors, imitation of a snake and
manipulation of water appeal to a sense of fun and play with
water. The ultimate purchaser expects to use this article as a
water toy for children, not as a lawn sprinkler. It is traded in
toy channels by a toy company, not a hardware or housewares
company. Its manner of advertisement and display all highlight
its amusing qualities. All of these characteristics indicate
that "Super Snake" is designed principally to amuse. As a result
of finding "Super Snake" to be a toy properly classified in
Chapter 95, classification of the article in Chapter 39 is
precluded.
HOLDING:
"Super Snake" is classified under subheading 9503.90.0045,
HTSUS, which provides for "[o]ther toys; reduced-size ("scale")
models and similar recreational models, working or not; puzzles
of all kinds; parts and accessories thereof: [o]ther: [o]ther
toys and models," with a general 1998 column one duty rate of
free.
NYRL B86181 is revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will become effective 60 days after its
publication in the Customs Bulletin. Publication of rulings or
decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a
change of practice or position in accordance with section 177.10
(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Commercial Rulings Division