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HQ 961912




October 28, 1998

CLA-2 RR:CR:GC 961912 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. Scott E. Rosenow
Stein Shostak Shostak & O'Hara
1620 L Street, Suite 807
Washington, D.C. 20036

RE: "Elmo's 1-2-3 Sprinkler"

Dear Mr. Rosenow:

This is in response to your June 4, 1998, letter requesting a binding ruling on behalf of Mattel Inc., for the classification of an article identified as "Elmo's 1-2-3 Sprinkler" under the Harmonized Tariff Schedule of the United States Annotated (HTSUS). Samples of the subject articles were submitted.

FACTS:

The subject article is identified as "Elmo's 1-2-3 Sprinkler" model #36173. It consists of a three dimensional molded plastic representation of the "Sesame Street" character "Elmo," holding a clam in one hand and a snorkel in the other. "Elmo" sits on a doughnut-shaped life preserver which is on a base decorated to depict sand and water. Three smaller water-squirting molded plastic representations of "Baby Big Bird," "Baby Ernie," and "Baby Elmo"are also included in the package. They were designed and included as accessories to "Elmo's 1-2-3 Sprinkler".

The larger "Elmo" measures approximately 15 inches high and 10 inches wide at its widest point. A round piece of threaded plastic sized to match a standard garden hose, is attached to the bottom right hand side of the article. Five small perforations have been made in the large "Elmo"; 3 in the life preserver portion, one in the mouth of the clam and one on top of the snorkel. As the large "Elmo" fills with water, pressure builds forcing water out of the small perforations. A 3 setting switch on the back of the life preserver portion allows the user to control the force of the water as well as its projection pattern.

Setting 1 only allows a gentle mist of water to flow from the snorkel. According to the importer, setting 1 is designed for babies to introduce them to water play. Setting 2 is a little bit stronger and introduces the "spinning" element whereby "Elmo" and the life preserver rotate. Water is emitted from the openings on the life preserver as well as the mist from the snorkel. According to the importer, the purpose of the spinning is to introduce toddlers to a new spray pattern. Finally, setting 3 increases the water pressure, the speed at which "Elmo" rotates and introduces an additional source of water from the clam. According to the importer, the purpose of these increases is to introduce preschoolers to more varied water play.

The box describes "Elmo's 1-2-3 Sprinkler" as: "[w]ater [f]un for [i]nfant & [p]reschooler!"..."[t]he [o]nly [s]prinkler [t]hat [g]rows [w]ith [y]our [c]hild." The instructions included in the box state: "Elmo's 1-2-3 Sprinkler" has been designed for use with standard garden hoses and has a variety of spray patterns that can be selected to provide hours of fun."

ISSUE:

What is the proper classification of the "Elmo's 1-2-3 Sprinkler"?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS 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 headings under consideration are as follows:

8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

Note 1(p) to Section XVI states that: "[t]his section does not cover...(p) [a]rticles of chapter 95." Therefore, we must first determine whether "Elmo's 1-2-3 Sprinkler is classifiable as an article of Chapter 95, HTSUS. If so, it is excluded from classification in heading 8424, HTSUS, by operation of Note 1(p) to Section XVI.

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

The physical characteristics of "Elmo's 1-2-3 Sprinkler," mainly its bright colors, "Sesame Street" motif and manipulation of water, appeal to a sense of fun and play with water. The ultimate purchaser expects to use this article as a water toy for children. It is traded in toy channels by a toy company. Its manner of advertisement and display all highlight its amusing qualities. All of these characteristics indicate that "Elmo's 1-2-3 Sprinkler " is designed principally to amuse. For a further discussion of toy water sprinklers see Headquarters Ruling Letters 961530 and 961918 both dated October 21, 1998. As "Elmo's 1-2-3 Sprinkler" is classifiable as a toy for tariff purposes it is excluded from classification in heading 8424 by operation of note 1(p) to Section XVI.

HOLDING:

"Elmo's 1-2-3 Sprinkler" is classified under subheading 9503.90.0045, HTSUS, which provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther: [o]ther toys and models," with a general 1998 column one duty rate of free.

Sincerely,

John Durant, Director

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