CLA-2 RR:CR:GC 961912 MMC
Mr. Scott E. Rosenow
Stein Shostak Shostak & O'Hara
1620 L Street, Suite 807
Washington, D.C. 20036
RE: "Elmo's 1-2-3 Sprinkler"
Dear Mr. Rosenow:
This is in response to your June 4, 1998, letter requesting
a binding ruling on behalf of Mattel Inc., for the classification
of an article identified as "Elmo's 1-2-3 Sprinkler" under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUS). Samples of the subject articles were submitted.
FACTS:
The subject article is identified as "Elmo's 1-2-3
Sprinkler" model #36173. It consists of a three dimensional
molded plastic representation of the "Sesame Street" character
"Elmo," holding a clam in one hand and a snorkel in the other.
"Elmo" sits on a doughnut-shaped life preserver which is on a
base decorated to depict sand and water. Three smaller water-squirting molded plastic representations of "Baby Big Bird,"
"Baby Ernie," and "Baby Elmo"are also included in the package.
They were designed and included as accessories to "Elmo's 1-2-3
Sprinkler".
The larger "Elmo" measures approximately 15 inches high and
10 inches wide at its widest point. A round piece of threaded
plastic sized to match a standard garden hose, is attached to the
bottom right hand side of the article. Five small perforations
have been made in the large "Elmo"; 3 in the life preserver
portion, one in the mouth of the clam and one on top of the
snorkel. As the large "Elmo" fills with water, pressure builds
forcing water out of the small perforations. A 3 setting switch
on the back of the life preserver portion allows the user to
control the force of the water as well as its projection pattern.
Setting 1 only allows a gentle mist of water to flow from
the snorkel. According to the importer, setting 1 is designed
for babies to introduce them to water play. Setting 2 is a
little bit stronger and introduces the "spinning" element whereby
"Elmo" and the life preserver rotate. Water is emitted from the
openings on the life preserver as well as the mist from the
snorkel. According to the importer, the purpose of the spinning
is to introduce toddlers to a new spray pattern. Finally,
setting 3 increases the water pressure, the speed at which "Elmo"
rotates and introduces an additional source of water from the
clam. According to the importer, the purpose of these increases
is to introduce preschoolers to more varied water play.
The box describes "Elmo's 1-2-3 Sprinkler" as: "[w]ater
[f]un for [i]nfant & [p]reschooler!"..."[t]he [o]nly [s]prinkler
[t]hat [g]rows [w]ith [y]our [c]hild." The instructions included
in the box state: "Elmo's 1-2-3 Sprinkler" has been designed for
use with standard garden hoses and has a variety of spray
patterns that can be selected to provide hours of fun."
ISSUE:
What is the proper classification of the "Elmo's 1-2-3
Sprinkler"?
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:
8424 Mechanical appliances (whether or not hand operated)
for projecting, dispersing or spraying liquids or
powders; fire extinguishers, whether or not charged;
spray guns and similar appliances; steam or sand
blasting machines and similar jet projecting machines;
parts thereof
9503 Other toys; reduced-size ("scale") models and
similar recreational models, working or not;
puzzles of all kinds; parts and accessories
thereof
Note 1(p) to Section XVI states that: "[t]his section does not
cover...(p) [a]rticles of chapter 95." Therefore, we must first
determine whether "Elmo's 1-2-3 Sprinkler is classifiable as an
article of Chapter 95, HTSUS. If so, it is excluded from
classification in heading 8424, HTSUS, by operation of Note 1(p)
to Section XVI.
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.
The physical characteristics of "Elmo's 1-2-3 Sprinkler,"
mainly its bright colors, "Sesame Street" motif 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. It is traded in toy channels by a toy company. Its
manner of advertisement and display all highlight its amusing
qualities. All of these characteristics indicate that "Elmo's 1-2-3 Sprinkler " is designed principally to amuse. For a further
discussion of toy water sprinklers see Headquarters Ruling
Letters 961530 and 961918 both dated October 21, 1998. As
"Elmo's 1-2-3 Sprinkler" is classifiable as a toy for tariff
purposes it is excluded from classification in heading 8424 by
operation of note 1(p) to Section XVI.
HOLDING:
"Elmo's 1-2-3 Sprinkler" 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.
Sincerely,
John Durant, Director
Commercial Rulings Division