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HQ 956261


May 26, 1994

CLA-2 CO:R:C:F 956261 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 2851.00.0090

Mr. Marvin Double
Double Enterprises
10520 Yonge St., Unit 35B, Suite 312
Richmond Hill, Ontario L4C 3C7
Canada

RE: Silly Sprays Novelty Items; Heading 2851, Other inorganic compounds, including distilled water; Not 9503 toys; Not 9505 practical joke articles

Dear Mr. Double:

This is in response to your letter of March 12, 1994, requesting the proper classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of Silly Sprays novelty items. You submitted a sample as well as photographs with your request for a binding ruling.

FACTS:

The merchandise consists of plain distilled water pressurized with nitrogen, put up in a can. When the nozzle is pushed, a spray of water is emitted. The product, which is available in four varieties, serves as a novelty gift or souvenir. "Birthday Repellent" might be a gift for an individual unhappy about facing another birthday. "Instant Vacation" and "Weekend Extender" would be intended for an individual without leisure or vacation time. "Personal Space" might be a gift for a highly stressed individual.

ISSUE:

Whether the Silly Sprays are classifiable within heading 9503 as toys; heading 9505 as practical joke articles; heading 2851 as other inorganic compounds, including distilled water; or elsewhere in the HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported 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. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Two headings worthy of consideration in this case are heading 9503 providing for toys and heading 9505 providing for, among other things, practical joke articles. With regard to heading 9503, the ENs to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUSA. Customs defines principal use as that use which exceeds each other single use of the article. In this case, since the articles will not be principally used as toys, they are not classifiable within heading 9503. In our opinion, the articles do not provide the manipulative play value or frivolous entertainment characteristic of toys.

With regard to heading 9505, the EN indicate that, among other things, the heading includes:

(B) Conjuring tricks and novelty jokes, e.g., packs of cards, tables, screens and containers, specially designed for the performance of conjuring tricks; novelty jokes such as sneezing powder, surprise sweets, water-jet button-holes and "Japanese flowers."

In determining whether merchandise qualifies as a practical joke article, Customs has utilized the standard articulated in Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408 C.D. 4304 (1970). In that decision, the court reviewed several dictionary and court case definitions of the term "practical joke," determining that a practical joke article is one which causes humor by "somehow placing an individual at a disadvantage through a trick or prank."

Accordingly, in Headquarters Ruling Letters (HRLs) 952472, issued February 8, 1993 and 950564, issued March 13, 1992, a Strobie Ghost consisting of a battery operated ghost figure emitting screams and flashing lights and Mr. Piddle Bib, a penal bib with brightly colored tie strings to be worn around one's hips, both were classified as other than practical joke articles. On the contrary, in HRLs 953187, issued August 5, 1993, 953188, issued May 18, 1993, and 089529, issued October 1, 1991, rubber squirt figures
which when squeezed emitted water from the figure's mouth and Weepy the Wee Wee consisting of a figure which, when his pants were pulled down, would squirt water out from a hole in the front pelvic area, were classified as practical joke articles. In the latter decisions, as opposed to the former decisions, Customs maintained that the merchandise would surprise and/or trick an individual, placing them at a humorous disadvantage.

It is our opinion that the subject merchandise, although humorous, does not surprise and/or trick an individual nor place one at a humorous disadvantage. In accordance with the definition articulated in the Parksmith case as well as the applicable EN, the Silly Spray novelties do not qualify as practical joke articles and must be classified elsewhere.

Heading 2851, HTSUSA, provides for, inter alia, other inorganic compounds, including distilled water. The EN to 2851 indicate that, "the heading covers only distilled water, re- distilled or electro-osmotic water, conductivity water and water of similar purity, including water treated with ion exchange media." Because it is our understanding that the Silly Sprays are comprised of plain distilled water, the terms of the heading as confirmed by the applicable EN indicate that the articles are classifiable, pursuant to GRI 1, within heading 2851.

HOLDING:

The Silly Sprays are classified in subheading 2851.00.0090 as, "Other inorganic compounds (including distilled or conductivity water and water of similar purity)..., Other." The general column one rate of duty is 2.8 percent ad valorem.

Advance rulings specifically may be requested with respect to prospective, current, and ongoing North American Free Trade Agreement (NAFTA) transactions from the Office of Regulations and Rulings or the Area Director of Customs, New York Seaport. In this regard, it is suggested that you consult the procedures relating to advance NAFTA rulings in interim regulations 19 C.F.R. 181, Subpart I, as published in the Federal Register of December 30, 1993.

Sincerely,

John Durant, Director
Commercial Rulings Division

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