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HQ 961254




January 5, 1999

CLA-2 RR:CR:GC 961254 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. Michael K. Tomenga
Neville, Peterson & Williams
1233 20th Street, N.W., Suite 500
Washington D.C. 20036

RE: Peter Pan Spyglass; NYRL C81752 modified

Dear Mr. Tomenga:

This is in reference to your January 6, 1998, letter requesting reconsideration of New York Ruling Letter (NYRL) C81752 dated December 9, 1997. In NYRL C81752, the Director, Customs National Commodity Specialist Division, New York, held an article described as a "Peter Pan Spyglass" to be classifiable in subheading 9005.80.4040, of the Harmonized Tariff Schedule of the United States (HTSUS), as an optical telescope. A sample was submitted for our review.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], 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), notice of the proposed modification of NYRL C81752 was published, on November 18,1998, in the Customs Bulletin, Volume 32, Number 46.

FACTS:

The "Peter Pan Spyglass" is a hand held plastic article which measures 4¬ inches tall and 4« inches wide at its widest point. A figure of Captain Hook is molded into its handle. The item functions as an optical telescope. Objects viewed through this optical telescope (monocular) are magnified. The spyglass will be used as a prize in a fast food restaurant children's meal.

ISSUE:

Whether the "Peter Pan Spyglass" is classifiable as a toy under heading 9503, HTSUS, or as an optical telescope under heading 9005, HTSUS.

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:

9005 [b]inoculars, monoculars, other optical telescopes, and mountings therefor; other astronomical instruments and mountings therefor, but not including instruments for radio-astronomy; parts and accessories thereof

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

Note 1(k) of Chapter 90, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95." Therefore, we must first determine whether the "Peter Pan Spyglass" is classifiable as a toy for tariff purposes. If so, it is excluded from classification in heading 9005, HTSUS, by operation of Note 1(k) to Chapter 90.

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." Furthermore, EN 95.03 states, in pertinent part, that "[c]ertain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited use'; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc." Finally, we believe such design for the amusement of children or adults 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 Court in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979, 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.

The physical characteristics of the "Peter Pan Spyglass", mainly its plastic lenses and form as well as its bright colors and childhood theme, appeal to a sense of fun and play. The article is designed as a gadget to pretend to be a pirate. While it does function, its function is limited by its size and constituent material. The "Peter Pan Spyglass" is described by both heading 9005, HTSUS, and heading 9503, HTSUS. By operation of Note 1(k) to Chapter 90, it therefore is excluded from classification in heading 9005, HTSUS.

HOLDING:

The "Peter Pan Spyglass" 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. NYRL C81752 is modified to reflect this position.
In accordance with 19 U.S.C. ?1625(c)(1), 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(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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