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HQ 961530




October 21, 1998

CLA-2 RR:CR:GC 961530 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. Allen Sanft
Shelcore Toys
347 Elizabeth Avenue
Somerset, N.J. 08873-1101

RE: "Super Snake" water sprinkler; NYRL B86181 revoked

Dear Mr. Sanft:

This is in reference to New York Ruling Letter (NYRL) B86181 dated July 10, 1997, issued to Shelcore Toys, concerning the classification of an article described as "Super Snake" (item 02693) under subheading 3926.90.9890, of the Harmonized Tariff Schedule of the United States (HTSUS), as other articles of plastic. Catalog pictures of the article were submitted for our review. In preparing this ruling we have considered the information in your supplemental letter of June 11, 1998.

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), notice of the proposed revocation was published on September 16, 1998, in Volume 32, Number 37 of the Customs Bulletin. No comments were received in response to this notice.

FACTS:

"Super Snake" is a snake-shaped inflatable water sprinkler. It has a yellow base with a bright pink and green pattern over the base. It measures 4 feet long and sprays water up to 15 feet high. A round piece of threaded plastic sized to match a standard garden hose, is attached to the back of the article. As "Super Snake" fills with water, pressure builds forcing water out of the small perforations on the top of the article.

According to the information furnished, "Super Snake" is designed and imported exclusively for Shelcore Toys and advertized on such stations as TNT, The Family Channel and Nickelodeon. The product line to which "Super Snake" belongs was researched and designed to target children and their parents. The catalog with product sheets describes "Super Snake" as: "This "ferocious" snake is really a softy! Stretching 4 feet in length, this vividly colored sprinkler sprays water up to 15 feet high. Parents simply inflate and then connect it to a standard hose to watch the splish-splash fun begin. Splish and splash fun for the yard with Super Snake Sprinkler. Ages Over 3 years and up."

ISSUE:

Whether "Super Snake" is classifiable as a toy under heading 9503, HTSUS, as other plastic household articles under heading 3924, HTSUS, or as other plastic articles under heading 3926, 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:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914

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

Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games, sports equipment.)." Therefore, we must first determine whether "Super Snake" is classifiable as a toy for tariff purposes. If so, it is excluded from classification in subheadings 3924 and 3926, HTSUS, by operation of Note 2(v) to Chapter 39.

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.

In NYRL A86380 dated August 13, 1996, Customs classified a series of water sprinklers designed for use in watering lawns and gardens in 3924.90.5500, HTSUS. Unlike the lawn sprinklers classified in NYRL A86380, the physical characteristics of "Super Snake," mainly its bright colors, imitation of a snake 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, not as a lawn sprinkler. It is traded in toy channels by a toy company, not a hardware or housewares company. Its manner of advertisement and display all highlight its amusing qualities. All of these characteristics indicate that "Super Snake" is designed principally to amuse. As a result of finding "Super Snake" to be a toy properly classified in Chapter 95, classification of the article in Chapter 39 is precluded.

HOLDING:

"Super Snake" 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 B86181 is revoked. In accordance with 19 U.S.C. 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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