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HQ 964334




October 13, 2000

CLA-2 RR:CR:GC 964334 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.20

Ms. Maria Da Rocha
D & D Customshouse Brokerage
570 North Broad Street
Suite 13
Elizabeth, NJ 07208

RE: "Big Mouth Rainbow Trout"; Not Toys; Not Other Electrical Machine and Apparatus; Practical Joke Article

Dear Ms. Da Rocha:

This is in response to your request of May 25, 2000, on behalf of Tristar Products, requesting a ruling concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of an article marketed as "Big Mouth Rainbow Trout." A sample was submitted with your request.

FACTS:

The sample appears to be designed to look like a real trout mounted on a plaque/trophy board. The trout, when activated, moves and sings or speaks its songs and phrases. The sample presented sings "The Wide Mouth Shuffle", and utters such phrases as "Face it baby, you're hooked on me", "I'm some catch", and "Hey, you drink like a fish." As a song begins, the fish wags its tail in time with the music. As the song progresses, the fish raises its head from the mounting, faces its viewers and moves its mouth in almost perfect synchrony with the song and music, such that it appears that the fish is actually singing the songs, albeit remaining attached in part to its mounting. The singing and speaking is activated manually by a red button on the plaque below the fish, after setting a switch on the back. The fish, measuring about 13 inches in length and about 5½ inches in height is constructed of a natural-looking plastic material colored to look like a real trout. The plaque/trophy board, measuring about 9 inches by 13 inches, upon which the fish is mounted is caramel colored marbleized plastic.

The article is powered by batteries or, in the alternative, a by 6-volt DC, 120 V A/C adapter which can be plugged into the adapter jack located on the lower outside corner of the trophy board. The plaque/trophy board is to be hung on the wall or placed on a level surface using the built-in easel as a stand. In use, the owner would invite an unaware person to view his fishing trophy. While the viewer approaches the fish, the owner would press the button to activate the article. While the user is expected to be startled, surprised, mystified, or amused by the article, those sentiments would not be likely at subsequent performances of the fish. The amusement appears to be limited to having someone else be surprised by the fish and not by watching it over and over again.

The article contains an electric motor to move the fish and an electronic chip and related electronic sound apparatus that contains and amplifies the songs.

ISSUE:

Whether the "Big Mouth Rainbow Trout" singing fish is classifiable within heading 9503, HTSUS, as toys; in heading 9505, HTSUS, as practical joke articles; in heading 8543, HTSUS, as other electrical machines and apparatus; 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. 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 GRIs may then be applied. 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.

In NY F82965 dated March 3, 2000, Customs classified a similar article in subheading 8543.89.9695, HTSUS. That decision has been revoked by Headquarters Ruling Letter (HQ) 964171, issued October 2, 2000, following publication of the notice of proposed revocation on August 30, 2000, in the Customs Bulletin, Volume 34, Number 36. Subheading 8543.89.9695, HTSUS, provides for "Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, parts thereof: Other machines and apparatus: Other: Other: Other, Other." Note 1(p) to Section XVI, which includes Chapter 85, HTSUS, which, in turn, covers heading 8543, provides that this section does not cover articles of Chapter 95. Thus, if the Big Mouth Rainbow Trout is classifiable under headings 9503 or 9505, then note 1(p) to Section XVI precludes classification under heading 8543 and necessitates classification under Chapter 95.

Two headings worthy of additional 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." The ENs to heading 9503 indicate that among other toys, the heading covers toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters). 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. Although there is an element of amusement in this article, it also functions to trick or surprise unsuspecting individuals, in other words, to put the individual at a humorous disadvantage. In this case, since the article will not be principally used as a toy, it is not classifiable within heading 9503. In our opinion, the article does not provide the manipulative play value or frivolous entertainment characteristic of toys. While toys are usually played with at some length, this article loses its surprise value after the first use.

Heading 9505, HTSUS, provides, inter alia, for practical joke articles. The EN to 9505 indicates that 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 HQ 953187, issued August 5, 1993; HQ 953188, issued May 18, 1993; and HQ 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 these 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 also serves to surprise and/or trick an individual and place one at a humorous disadvantage. Pursuant to the applicable EN and the definition articulated in the Parksmith case, the Big Mouth Rainbow Trout singing fish qualifies as a practical joke article and is classified in Heading 9505, HTSUS.

HOLDING:

The " Big Mouth Rainbow Trout " singing fish is properly classified in subheading 9505.90.20, HTSUS, the provision for festive, carnival or other entertainment articles, other, magic tricks and practical joke articles.

Sincerely,

John Durant, Director
Commercial Rulings Division


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