HQ 0088512 - Internal Advice Request No. 77/90; Plastic Pet Toy; Other Article of Plastics; Not Other Household Article of Plastics; HRL 086069 of March 6, 1990. - United States International Trade Commision Rulings

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HQ 088512

May 23, 1991

CLA-2 CO:R:C:F 088512 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9050

Area Director of Customs
Commercial Operations Division
New York Seaport
6 World Trade Center
Room 425
New York, NY 10048-0945

RE: Internal Advice Request No. 77/90; Plastic Pet Toy; Other Article of Plastics; Not Other Household Article of Plastics; HRL 086069 of March 6, 1990.

Dear Area Director:

This request for Internal Advice was initiated by a letter dated October 17, 1990, from the law firm of Kuhn and Muller on behalf of their client, The Hartz Mountain Corporation.

FACTS:

The article in question, a sample of which was forwarded for our examination, is a plastic pet toy molded in the shape of a sneaker. It has painted highlights and whistles when squeezed.

It is your view that the subject pet toy is classifiable as an other article of plastics in heading 3926, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), rather than as an other household article of plastics in heading 3924, HTSUSA. In your opinion, pet toys do not belong to the class or kind of merchandise enumerated in the Explanatory Notes to HTSUSA headings 3924, 6911, and 6912.

Counsel for the importer contends that as the item in question is principally used in the household, it is classifiable in heading 3924 as a household article of plastics. He maintains that the application of the ejusdem generis rule of statutory construction is irrelevant to the question of principal use.

ISSUE:

Is the pet toy in question a "household article" within the purview of heading 3924, HTSUSA?

LAW AND ANALYSIS:

In Headquarters Ruling Letter (HRL) 086069 of March 6, 1990, this office ruled that plastic pet toys were classifiable not as other household articles of plastics in subheading 3924.90.5000, HTSUSA, but as other articles of plastics in subheading 3926.90.9050, HTSUSA. This determination was based in part on the existence of a nomenclature provision for rubber pet toys separate and distinct from the provision for rubber household articles. We also expressed the belief that pet toys are not of the class or kind of goods classified in heading 3924. Their principal use is not similar to the uses of the exemplars found in the Explanatory Notes to headings 3924, 6911, and 6912.

It may well be true that the principal use of many pet toys takes place inside the home. This fact alone, however, does not ensure their classification as household articles. Additional U.S. Rule of Interpretation 1(a) mandates that:

1. In the absence of special language or context which otherwise requires--

(a) 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 good belong, and the controlling use is the principal use. (Emphasis added.)

Ejusdem generis is relevant to the question of principal use.

The Explanatory Notes to the Harmonized Schedule provide us with the best information regarding the scope of the HTSUSA headings. The Explanatory Note to heading 3924 indicates that the heading includes dustbins, buckets, knives, forks, curtains, and table covers. The Note also indicates that: "The Explanatory Notes to heading 69.11 and 69.12 apply, mutatis mutandis, to this heading." Articles classifiable in headings 6911 and 6912 include plates, cups, baking or roasting dishes, pastry or jelly moulds, ash trays, hot water bottles, toilet seats, tooth brush holders, and toilet paper holders.

The subject pet toy fails to resemble any of the above-mentioned exemplars. Consequently, it is not classifiable as an other household article of plastics in heading 3924. The pet toy is classifiable as an other article of plastics in heading 3926.

HOLDING:

The pet toy in question is classifiable in subheading 3926.90.9050, HTSUSA, which provides for other articles of plastics: other: other: other. The applicable rate of duty is 5.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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