HQ 0082969 - Protest No. 3801-7-001830, plastic snow shovels - United States International Trade Commision Rulings

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HQ 082969

May 21, 1990

CLA-2 CO:R:C:G 082969 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 772.15

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, MI 48266

RE: Protest No. 3801-7-001830, plastic snow shovels

Dear Sir:

The following is our decision regarding the Protest for Further Review No. 3801-7-001830, dated October 2, 1987. At issue is the classification under the Tariff Schedules of the United States (TSUS) of Entry No. 86231306. The entry consists of snow shovels imported by St. Lawrence Manufacturing Canada, Inc.

FACTS:

The articles in question, snow shovels, were entered September 19, 1987, at the Detroit port. The snow shovels were imported from Canada by St. Lawrence Manufacturing Canada, Inc. The shovel in question is model number 705. This model has an overall length of 34 inches. No. 705's blade is 10 1/2 inches high, 11 7/8 inches wide, and 1 3/4 inches in depth. The shovel is made of plastic.

Upon entry, the articles were classified under item 737.95, TSUS, as "[t]oys, and other parts of toys, not specially provided for...[o]ther..." The importer believes that the shovels should be classified under item 648.51, TSUS, as "...[d]rainage tools, scoops, shovels, and spades, and parts thereof..."

ISSUE:

Whether the snow shovel should be classified under item 737.95, TSUS, as "[t]oys, and other parts of toys, not specially provided for...[o]ther...", under item 648.51, TSUS, as "...[d]rainage tools, scoops, shovels, and spades, and parts
thereof...", or under item 772.15, TSUS, as "...household articles not specially provided for; all the foregoing of rubber or plastic...[o]ther..."

LAW AND ANALYSIS:

The importer contends that the snow shovel should be classified within item 648.51, TSUS, since the item is an eo nomine provision for shovels. Although shovels are specifically provided for in item 648.51, this provision is within Schedule 6, Part 3, TSUS. Schedule 6, Part 3 covers metal and metal products. The legislative intent was to include only shovels made of metal within item 648.51. Therefore, the plastic snow shovel in question cannot be classified under item 648.51.

You state that you believe this shovel should be classified in item 737.95, TSUS, as "[t]oys, and other parts of toys, not specially provided for...[o]ther..." A "toy" for tariff purposes is "any article chiefly used for the amusement of children or adults." Schedule 7, Part 5, Subpart E, Headnote 2, TSUS. General Headnote 10(e)(i), TSUS states:

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 articles of that class or kind to which the imported articles belong, and the controlling use is the chief use, i.e., the use which exceeds all other uses (if any) combined...

In order to be a toy, the snow shovel must be chiefly used for amusement purposes. 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 utilitarian purpose is incidental to the amusement. Childcraft Education Corp. v. United States, 572 F. Supp. 1275, reversed 742 F.2d 1413 (1984). Articles are not toys if they are reasonably capable of use for some practical purpose other than the amusement of children. United States v. Globe Overseas Corp., 13 CuApp 10, T.D. 40849 (1925), affirmed G.A. 8867, T.D. 40424.

The snow shovel is not a toy because it is not chiefly used for amusement purposes. That it is a smaller size for use by children does not take away its utilitarian value nor make it a toy. The shovel is not of such a small size that its use is limited to very young children who merely imitate snow shoveling. Advertising the shovel as "[w]inter fun for everyone" does not make the shovel a toy. Shoveling snow is a practical activity, not an amusement. Any amusement to be gained from shoveling snow
is purely incidental to the utilitarian purpose of the act. Therefore, since the shovel is not chiefly used for amusement, it is not a toy and it cannot be classified in item 737.95.

Treasury Decision 70-254(17) held that a snow shovel that was in chief value of plastic, and was used in areas adjacent to private homes was classified under the provision for household articles not specifically provided for, of plastic, under item 772.15, TSUS. T.D. 70-254(17), 4 Cust. B. & Dec. 782, 785 (December 1970). The snow shovel in that situation is similar to the shovel in question. The current shovel is in chief value of plastic. The advertising for it is aimed at family use. Families would usually shovel together at their homes. Thus, the proper classification for this snow shovel is in item 772.15, TSUS, as "...household articles not specially provided for; all the foregoing of rubber or plastic...[o]ther..."

HOLDING:

The St. Lawrence Manufacturing Canada, Inc. snow shovel model number 705 is made of plastic, and thus, cannot be classified under item 648.51, TSUS. Item 648.51 covers shovels made of metal. The shovel's chief use is for shoveling snow which is a utilitarian activity, not an amusement. Therefore, the shovel is not a toy under item 737.95, TSUS. The snow shovel is properly classified as "...household articles not specially provided for; all the foregoing of rubber or plastic...[o]ther..." in item 772.15, TSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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