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HQ 952296

December 15, 1992

CLA-2 CO:R:C:M 952296 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.00

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

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