CLA-2 OT:RR:CTF:TCM H108681 RES
Mr. Brian Kavanaugh
Deringer Logistics Consulting Group
1 Lincoln Blvd., Suite 225
Rouses Point, NY 12979
RE: Modification of NY L83477, dated April 13, 2005.
Dear Mr. Kavanaugh:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling letter L83477, dated April 13, 2005, regarding the classification of a “Sea Turtle” air freshener, under the Harmonized Tariff Schedule of the United States (“HTSUS”). The merchandise was classified in NY L83477 as a toy under heading 9503, HTSUS. We have determined that NY L83477 was in error with respect to the classification of the “Sea Turtle” air freshener. Accordingly, we are modifying NY L83477, to reflect the proper classification of the “Sea Turtle” air freshener.
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, notice of the proposed action was published on December 28, 2011, in Volume 46, Number 1, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY L83477, the article at issue was described as follows:
The Sea Turtle air freshener is composed of fragrance-impregnated plastic in the shape of a turtle. An elastic holder is strung through a loop in the center of the turtle shell . . . [h]ung on the rearview mirror of an automobile the . . . Sea Turtle [is] utilized as an air freshener and an auto decoration.
Additionally, the back of the packaging for the article is marked with the warning “not a toy.” This article was classified under heading 9503 HTSUS, as “[o]ther toys . . . parts and accessories thereof: [t]oys representing animals or non-human creatures . . . and parts and accessories thereof.”
ISSUE:
Is the Sea Turtle air freshener at issue classifiable under heading 3307, HTSUS, or under heading 9503, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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, the remaining GRI 2 through 6 may be applied in order.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, 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 following 2011 HTSUS provisions are under consideration:
3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scaled (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 3 to Chapter 33, HTSUS, provides in pertinent part:
Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put in packings of a kind sold by retail for such use.
(Emphasis in original).
Although the term “toy” is not defined in the HTSUS, EN to heading 9503, HTSUS, provides that “this heading covers toys intended essentially for the amusement of persons.” The case U.S. v. Topps Chewing Gum, 58 CCPA 157, C.A.D. 1022 (1971), is illustrative in determining whether an article is intended for the amusement of the user. In Topps, various decorative buttons with humorous quotes were classified as toys of heading 9503. The court in Topps held that if the purpose of an object is to give the same kind of enjoyment as playthings give, its purpose is amusement. It is the quality of mind or emotion induced by the object which is controlling. Therefore, an article may be considered a toy if it is inherently or evidently amusing. See e.g., HQ 960136, dated July 24, 1997; HQ 959749, dated October 23, 1997; HQ 964834, dated May 23, 2002.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value for it to be classified as a toy. In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000), the court held that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 3 (1977), the Customs Court similarly held that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement.”
The Minnetonka court further concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation.
In determining whether the principal use of a product is for amusement, and it is thereby classified as a toy, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of sale (i.e. accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class. United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A. 1977).
The Sea Turtle air freshener’s characteristic of having a comical appearance is indicative that this product has an amusement function. However, the fact that the article is scented demonstrates that the article also has the utilitarian function of providing scent to the interior of an automobile. In addition, the article has a string attached to it for the purpose of hanging the article on a car’s rearview mirror. This design feature facilitates the article’s function as an air freshener such that it can passively scent the air of an automobile interior. Moreover, the predominant characteristic of this article is its scent because the first thing an individual would notice after entering the interior of a car that has this article would be the scent that the article provides. Furthermore, the fact that the name of the article contains the words “air freshener” and not “toy” along with the notice on the back of the packaging that states “Important: Not a toy. Keep away from children” emphasizes that the article’s primary function is that of providing a scent. Finally, the article is imported, packaged, and marketed as an air freshener and the article’s manufacturer, Car-Freshener Corporation, is in the business of designing, manufacturing, importing, and exporting automobile air freshener products. The Car-Freshener Corporation does not make toys.
Thus, based on an analysis under the Carborundum factors, the principal use of the Sea Turtle air freshener is not for amusement but for the primary purpose of providing a scent that permeates throughout the interior of an automobile. Articles, such as the air freshener at issue here, which are infused with scented oils and principally used to perfume or deodorize a room and are packaged for retail sale, are pursuant to Note 3 to Chapter 33, HTSUS, prima facie classifiable under heading 3307, HTSUS. See NY 801980, dated September 20, 1994; NY N009558, dated May 1, 2007. See also HQ H105015, dated December 7, 2010 (noting that a room deodorizer under heading 3307, HTSUS, is a preparation that disperses chemical preparations into the air to mask or chemically remove odor molecules).
Therefore, the Sea Turtle air freshener is classified under subheading 3307, HTSUS.
HOLDING:
Pursuant to GRI 1, the Sea Turtle air freshener article at issue is classified under heading 3307, specifically, subheading 3307.49.0000, HTSUSA, as “[p]re-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: [p]reparations for perfuming or deodorizing rooms, including odoriferous preparations used during religious rites: [o]ther.” The general, column one, rate of duty is 6 percent ad valorem.
EFFECTS ON OTHER RULINGS:
NY L83477, dated April 13, 2005, is modified.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division