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HQ 959285




February 25, 1997

CLA-2 RR:TC:FC 959285 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0060

Mr. Albert Cohen
Albert Cohen/"HI-5"
176 North Lake Avenue
Troy, NY 12180

RE: NYRL 818503 revoked; Headings 9505 and 3926

Dear Mr. Cohen:

This is in reference to your letters of March 19, 1996, and August 20, 1996, requesting reconsideration of New York Ruling Letter (NYRL) 818503 dated February 22,1996, in which you were advised of the classification of a "HI-5" plastic hand/arm article under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of a proposed revocation of NYRL 818503 was published on January 2, 1997, in the Customs Bulletin, Volume 30/31, Number 52/1. No comments were received in response to the notice.

FACTS:

The article is described as a "HI-5". It is a plastic replica of a hand and arm with spring action to manipulate the hand and arm. When an individual strikes the hand portion of the "HI-5" with their own hand, the "HI-5" springs back approximately 20ยง. Simultaneously, a battery operated transmitter emits a series of phrases. The phrases include, but are not limited by "Yes all right!", "Way to go" etc. The arm is covered with the purchaser's choice of fabric which imitates an athletic jersey. The article is used by a person to conduct the "high five" action and this action appears to be the article's exclusive function. The "HI-5" may be mounted on a wall and will be sold to a variety of outlets for placement in the home, office, sports bar, health spa, retail store, factory etc.

ISSUE:

Whether the "HI-5" is classifiable as an article of plastic or as a toy.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all 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. 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's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 3926, HTSUS, provides for other articles of plastics, and articles of other materials of headings 3901 to 3914. Heading 9503, HTSUS, provides for "[o]ther toys; reduced- size ("scale") models...and accessories thereof...." The subject article's most significant constituent material is plastic. A toy, simply defined, is an object designed for the amusement of a child or an adult. The ENs to chapter 95 indicate that the chapter covers toys of all kinds, whether designed for the amusement of children or adults. The EN to heading 9503 indicates that many of the toys are mechanically or electrically operated. The phrase "designed for the amusement of" is generally understood to indicate the use of an article will be a factor when classification in Chapter 95 is being considered. We find this article to be designed to enable the user to perform a "high five" usually in connection with an amusing event, such as observing a favorite sports team gain a point. Because the "HI-5" has plastic as a constituent material and also has been determined to meet the definition of a toy, it is described by two different headings. Inasmuch as the "HI-5" is described by two different headings, it is not classifiable according to GRI 1.

GRI 3 governs goods classifiable under two or more headings. GRI 3(a) states that where goods are classifiable under two or more headings, the heading that provides the most specific description will be preferred. The Explanatory Notes, for GRI 3(a) recognize the difficulty of establishing rules for determining the heading that provides the most specific description; however, the Notes state that "[i]f the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete." Heading 9503, HTSUSA, provides the more specific description of the merchandise. The description "toy" identifies the article as a whole, and therefore more specifically, than identifying it based on its most significant constituent material.

For the reasons set forth in this ruling, NYRL 818503 is revoked.
HOLDING:

The "HI-5" is classified under subheading 9503.90.0060, HTSUSA, as "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:Other:Other:Other:Other toys having a spring mechanism" with a column one duty rate of free.

NYRL 896081 dated February 22, 1996, is hereby revoked. In accordance with 19 U. S. C. ?1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U. S. C. ?1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

Sincerely,

John Durant, Director Commercial Rulings
Division

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