CLA-2 CO:R:C:M 952296 KCC
Stephen M. Zelman, Esq.
Stephen M. Zelman & Associates
845 Third Avenue
New York, New York 10022
RE: Plastic water gun suspended on a textile cord; GRI 1; toy;
General EN to Chapter 95; 7117.90.50; Note 8 to Chapter 71;
Note 10 to Chapter 71; imitation jewelry; American Heritage
Dictionary; pendant; HRL 089523
Dear Mr. Zelman:
This is in response to your letter dated July 1, 1992, to
Customs in New York, on behalf of Romar International Ltd.,
regarding the tariff classification of a plastic water gun
suspended on a textile cord under the Harmonized Tariff Schedule
of the United States (HTSUS). A sample of the water gun with
cord was submitted for examination.
FACTS:
The article under consideration is a plastic water gun in
the shape of a fish suspended on a 32 inch long textile cord,
style #211. The water gun is approximately 3 1/3 inches long, 1
3/4 inches high, and 3/4 inch in width. It is blue in color,
with a green colored trigger, a yellow water stopper and gummed-
on decal eyes. The textile cord is threaded through a loop which
is molded onto the top of the fish's fin. The water gun is to be
packaged and marketed with a variety of other beach toys in a bag
of beach games. Other items in the bag may include a plastic
shovel, plastic rake, plastic pail, swim fins and a sand mold.
ISSUE:
Is the plastic water gun suspended on a textile cord
classified as an article of imitation jewelry under subheading
7117.90.50, HTSUS, or is it classified as a toy under subheading
9503.49.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...."
Subheading 9503.49.00, HTSUS, provides for "Other toys;
reduced-size ("scale") models and similar recreational models,
working or not; puzzles of all kinds; and accessories
thereof...Toys representing animals or non-human creatures (for
example, robots and monsters) and parts and accessories
thereof...Other."
Although the term "toy" is not specifically defined in the
tariff, General Explanatory Note (EN) to Chapter 95 of the
Harmonized Commodity Description and Coding System (HCDCS) Vol.
4, p. 1585, indicates that, "[t]his Chapter covers toys of all
kinds whether designed for the amusement of children or adults."
It is Customs position that the amusement requirement means that
toys should be designed and used principally for amusement. The
Explanatory Notes, although not dispositive, are to be looked to
for proper interpretation of the HTSUS. 54 Fed. Reg. 35127,
35128 (August 23, 1989). See, Additional U.S. Rule of
Interpretation 1(a), HTSUS, which states that "a tariff
classification controlled by use (other than actual 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." Customs defines principal
use as that use which exceeds each other single use of the
article.
We are of the opinion that the plastic water gun under
consideration is a toy. The plastic water gun is designed and
used principally for the amusement of children. The plastic
water gun is a plaything which the child can repeatedly fill with
water and squirt others or other objects. Additionally, the
importer's intent to market the plastic water gun as a toy by
packaging it with other beach play items further strengthens
classification as a toy under subheading 9503.49.00, HTSUS.
It has been suggested that the plastic water gun is an
article of imitation jewelry classifiable under subheading
7117.90.50, HTSUS, which provides for "Imitation jewelry...
Other...Other...Valued over 20 cents per dozen pieces or parts."
Note 8 to Chapter 71 broadly construes the term "jewelry" in
stating that, for the purposes of jewelry provision (heading
7113), the expression "articles of jewelry" means:
(a) Any small objects of personal adornment (gem-set or
not) (for example, rings, bracelets, necklaces, brooches,
earrings, watch chains, fobs, pendants....
Similarly, Note 10 to Chapter 71 adds that "[F]or the purposes of
heading 7117, the expression "imitation jewelry" means articles
of jewelry within the meaning of paragraph (a) of note 8
above...."
Initially we are not convinced that the plastic water gun
will be worn around the neck because of the obvious choking
hazard it presents to the very young children for whom the gun is
designed. However, assuming that the plastic water gun will be
worn around the neck, it would not fall within the imitation
jewelry tariff provision. 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 plastic water
gun is not an ornamental article or a piece of jewelry. As
stated previously, it is a toy principally designed to provide
amusement to children. The expectation of the child-consumer is
not to wear the plastic water gun as an article of ornamentation,
but rather to play with the merchandise for the purpose of
amusement. The textile cord is not principally for wearing the
water gun, but is more of a method to handle and carry the water
gun in order to repeatedly fill it with water and squirt others
or other objects. The textile cord is similar to the carrying or
wearing straps of a camera or pair of binoculars which do not
affect the function of the merchandise.
The water gun under consideration is distinguishable from
the bubble pendant classified as imitation jewelry in
Headquarters Ruling Letter (HRL) 089523 dated January 6, 1992.
HRL 089523 held that bubble pendants were classified as imitation
jewelry because of their principal use as articles that could be
worn for adornment and due to their marketing and appeal to
children who would primarily be interested in the merchandise as
imitation jewelry. The water gun under consideration is clearly
a toy water gun intended for the amusement of both boys and
girls.
HOLDING:
The water gun with textile cord is properly classified under
subheading 9503.49.00, HTSUS, which provides for "Other
toys...Toys representing animals or non-human creatures (for
example, robots and monsters) and parts and accessories
thereof...Other...", which is dutiable at the General, Column 1,
rate of 6.8% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division