CLA-2 RR:CR:GC 961254 MMC
Mr. Michael K. Tomenga
Neville, Peterson & Williams
1233 20th Street, N.W., Suite 500
Washington D.C. 20036
RE: Peter Pan Spyglass; NYRL C81752 modified
Dear Mr. Tomenga:
This is in reference to your January 6, 1998, letter
requesting reconsideration of New York Ruling Letter (NYRL)
C81752 dated December 9, 1997. In NYRL C81752, the Director,
Customs National Commodity Specialist Division, New York, held an
article described as a "Peter Pan Spyglass" to be classifiable in
subheading 9005.80.4040, of the Harmonized Tariff Schedule of the
United States (HTSUS), as an optical telescope. A sample was
submitted for our review.
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, 2186),
notice of the proposed modification of NYRL C81752 was
published, on November 18,1998, in the Customs Bulletin, Volume
32, Number 46.
FACTS:
The "Peter Pan Spyglass" is a hand held plastic article
which measures 4¬ inches tall and 4« inches wide at its widest
point. A figure of Captain Hook is molded into its handle. The
item functions as an optical telescope. Objects viewed through
this optical telescope (monocular) are magnified. The spyglass
will be used as a prize in a fast food restaurant children's
meal.
ISSUE:
Whether the "Peter Pan Spyglass" is classifiable as a toy
under heading 9503, HTSUS, or as an optical telescope under
heading 9005, 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:
9005 [b]inoculars, monoculars, other optical telescopes, and
mountings therefor; other astronomical instruments and
mountings therefor, but not including instruments for
radio-astronomy; parts and accessories thereof
9503 [o]ther toys; reduced-size ("scale") models and
similar recreational models, working or not;
puzzles of all kinds; parts and accessories
thereof
Note 1(k) of Chapter 90, HTSUS, states that: "[t]his chapter does
not cover:...[a]rticles of chapter 95." Therefore, we must first
determine whether the "Peter Pan Spyglass" is classifiable as a
toy for tariff purposes. If so, it is excluded from
classification in heading 9005, HTSUS, by operation of Note 1(k)
to Chapter 90.
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." Furthermore, EN 95.03 states,
in pertinent part, that "[c]ertain toys (e.g., electric irons,
sewing machines, musical instruments, etc.) may be capable of a
limited use'; but they are generally distinguishable by their
size and limited capacity from real sewing machines, etc."
Finally, we believe such design for the amusement of children or
adults 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 Court in United States v.
Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373
(1976), cert. denied, 429 U.S. 979, 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.
The physical characteristics of the "Peter Pan Spyglass",
mainly its plastic lenses and form as well as its bright colors
and childhood theme, appeal to a sense of fun and play. The
article is designed as a gadget to pretend to be a pirate. While
it does function, its function is limited by its size and
constituent material. The "Peter Pan Spyglass" is described by
both heading 9005, HTSUS, and heading 9503, HTSUS. By operation
of Note 1(k) to Chapter 90, it therefore is excluded from
classification in heading 9005, HTSUS.
HOLDING:
The "Peter Pan Spyglass" 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 C81752 is modified to
reflect this position.
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