OT:RR:CTF:TCM H259644 ALS
Ms. Mary Compton
CHB Manager
Global Transportation Services, Inc.
18209 80th Ave South, Suite A,
Kent, Washington 98032
RE: Revocation of CBP Rulings NY N056253 and NY D83727; Modification of CBP Ruling NY M87177; Classification of Cat Toys
Dear Ms. Compton:
In a letter to U.S. Customs and Border Protection (CBP) dated March 24, 2009, your company requested a tariff classification ruling under the Harmonized Tariff Schedule of HTSUS for the Play-N-Squeak “Tail Spin” cat toy.
In CBP Ruling NY N056253 (April 20, 2009), CBP classified the Play-N-Squeak “Tail Spin” cat toy under the Harmonized Tariff Schedule of the United States (HTSUS) subheading 8543.70.9650 as an electrical apparatus with individual functions. We have reviewed NY N056253 and find the ruling to be incorrect.
For the reasons set forth below, we hereby revoke NY N056253 as well as another ruling with a substantially similar cat toy, CBP Ruling NY D83727 (November 16, 1998). We also hereby modify CBP Ruling NY M87177 (October 27, 2006). We also find both of those rulings to be incorrect with respect to the similar cat toys classified therein.
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), ), a notice was published in the CUSTOMS BULLETIN, Volume 49, No. 16, on April 22, 2015, proposing to revoke CBP Ruling Letters NY N056253 (April 20, 2009) and NY D83727 (November 18, 1998) and modify CBP Ruling Letter NY M87177 (October 27, 2006), and any treatment accorded to substantially identical transactions. No comments were received in response to the notice.
FACTS:
In NY N056253, CBP described the Play-N-Squeak “Tail Spin” cat toy, in pertinent part, as follows:
The merchandise subject to this ruling is the Play-N-Squeak "Tail Spin" cat toy. This item is comprised of a plastic housing in the shape of a tree stump. It measures approximately 4 ½ inches in height x 4 ½ inches in width. On the side of the tree stump is a small branch which contains an "On/Off" button. There are two openings located on the side of the tree stump. One opening contains a textile plush "mouse" which is suspended by a small spring; the other opening contains a simulated mouse tail that moves via a small electronic motor which is incorporated within this item. When the toy is activated, this device emits an electronic mouse squeak, while the artificial tail randomly emerges from the tree stump, enticing the cat to chase the tail and play with the mouse. In addition, this item features a sisal top for cats to scratch on. The toy operates on two "AA" batteries and contains replaceable mouse tail material. You suggest that the correct classification of this item is in subheading 6307.90.7500, HTSUS, which provides for toys for pets, of textile materials. This item is a composite good composed of textile, plastic, and electrical components. The textile materials do not impart the essential character. The electrical components impart the essential character. General Rule of Interpretation 3(b), HTSUS, noted.
ISSUE:
Is the mechanical function of the subject cat toy a primary function and therefore classifiable under HTSUS chapter 84 or is it subsidiary to the electrical function and therefore classifiable under HTSUS chapter 85?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order. The HTSUS provisions at issue are the following:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
8543.70.96 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8479.89 Other:
8479.89.98 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89.80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs to heading 84.79 state that this heading is restricted to machinery having individual functions which:
(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note, and
(b) Is not covered more specifically by a heading in any other Chapter of the
Nomenclature, and
(c) Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of functioning, description or type, and
(ii) No other heading covers it by reference to its use or to the industry in which it is employed, or
(iii) It could fall equally well into two (or more) other such headings (general purpose machines).
The EN for heading 8543 specifically states that “the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.” (Emphasis in original.)
The cat toy at issue herein and each case noted above have moving parts that work when given power from its battery source. The mechanical function of each cat toy is the movement of a featured part, whether it be the simulated mouse tail of the “Tail Spin,” the wand with a feather at its end of the “Cat Catch, or the replica mouse itself that comprises the “Crazy Mouse.” It is the moving part that the cat chases. The electrical function is each case, supplying power to the moving parts, actually supports the mechanical function of each toy, not the other way around. In fact, the articles noted in the exceptions listed in the EN for 8543 bear no resemblance to the cat toys at issue here. Thus, the mechanical functions in each case are not subsidiary to the electrical functions, thereby disqualifying each cat toy from being classified under heading 8543.
As machinery that is not otherwise classifiable anywhere else within the HTSUS and is not excluded from either Section XVI in general or Chapter 84 specifically, the Play-N-Squeak “Tail Spin” is properly classifiable under HTSUS subheading 8479.89.98 as an apparatus “having individual functions, not specified or included elsewhere in [Chapter 84]... Other: Other.” Likewise, the “Crazy Mouse” cat toy of NY D83727 and the “Cat Catch” cat toy of NY M87177 are also properly classifiable under HTSUS subheading 8479.89.98.
HOLDING:
The subject Play-N-Squeak “Tail Spin” cat toy is properly classified under HTSUS subheading 8479.89.98 as machines “having individual functions, not specified or included elsewhere in [Chapter 84];... Other: Other.” The general column 1 rate of duty is 2.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
CBP Ruling NY N056253 (April 20, 2009) is hereby REVOKED.
CBP Ruling NY D83727 (November 16, 2008) is hereby REVOKED.
CBP Ruling NY M87177 (October 27, 2006) is hereby MODIFIED only with respect to the tariff classification of the “Cat Catch” cat toy.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: Legal Department
Wal-Mart, Inc.
702 SW 8th Street
Bentonville, AR 72716-0215
Ms. Cathy Walsh
Delmar International, Inc.
1 Cross Island Plaza #115
Rosedale, NY 11422