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HQ 965321




May 9, 2002

CLA-2 RR:CR:GC 965321 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.00

Port Director
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401

RE: Protest 1703-01-100170; "Mr. Snowman Sno-Cone" maker

Dear Port Director:

This is our decision on Protest 1703-01-100170, filed by counsel for the protestant, Wal-Mart Stores, Inc., against your decision in the classification of the "Mr. Snowman Sno-Cone" maker under the Harmonized Tariff Schedule of the United States (HTSUS). The entry, made in 2000, was liquidated July 13, 2001, and the protest timely filed on September 6, 2001.

FACTS:

The merchandise is identified as "Mr. Snowman Sno-Cone" maker, item #7119, described as a machine used by children to make flavored shaved ice. The top of the sno-cone maker is a plastic snowman that also serves as a tool to press the ice cubes against the ice to be shaved. Removing the snowman reveals an open plastic chute. At the bottom of the chute are four small metal blades mounted on a plastic disk. Turning a plastic handle rotates the blades and shaves the ice. The ice shavings then fall into an attached plastic container. Included with the Sno-Cone Maker are 2 disposable cups, 2 plastic spoons, 1 package of soft drink mix, and 1 plastic syrup applicator in the shape of a snowman.

You classified the "Mr. Snowman Sno-Cone" maker in subheading 8210.00.00, HTSUS, the provision for hand-operated mechanical appliances, weighing 10 kg or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof.

The protestant claims that the "Mr. Snowman Sno-Cone" maker is classified in subheading 9503.90.00, HTSUS, the provision for "Other toys; reduced-size "scale" models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other."

ISSUE:

Whether the "Mr. Snowman Sno-Cone" maker is classified in heading 8210, HTSUS, which provides for hand-operated mechanical appliances, weighing 10 kg or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof, or in subheading 9503.90.00, HTSUS, other toys.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The HTSUS provisions under consideration for the classification of the sno-cone maker are as follows:

8210: Hand-operated mechanical appliances, weighing 10 kg. or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof.

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

This article is described by both headings. GRI 3 provides, in pertinent part, “When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description." However, under the terms of GRI 1, "any relative section or chapter notes" must be considered before applying the GRI's beyond GRI 1. Heading 8210, HTSUS, falls into Section XV. Note 1(l) to Section XV excludes "Articles of Chapter 95 (for example, toys, games, sports equipment)." Therefore, if the product meets the standards of heading 9503, HTSUS, it cannot be classified in heading 8210, HTSUS.

An examination of the sample demonstrates that the product appears to be of the kind that are limited use, food preparation articles, marketed and sold as toys, and providing manipulative play and role-play for young children. The articles included with the set, such as 2 disposable cups, and the plastic spoons, suggest both the limited use and the low-volume sno-cone production of the article, typical for amusement activities for young children. In short, this product could not be confused with a "real" sno-cone maker that would typically have an electric motor and be designed to produce scores of sno-cones in a day. The ENs to heading 9503 state that "certain 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." Because of the limited use, and the other factors indicated, supra, the article is classifiable in subheading 9503.90, HTSUS, as an other toy.

Because classification in chapter 82 is precluded by Note 1(l) to Section XV, it is not pertinent to discuss classification of this article in heading 8210.

This decision is in accord with Headquarters Ruling Letter (HQ) 961906, dated July 2, 1999, which classifies a similar product, the Snoopy Snow Cone Machine in subheading 9503.90, HTSUS. It is noted that this protest was denied in accordance with the decision in New York Ruling Letter (NY) D84633. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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), a notice was published on April 3, 2002, in Vol. 36, No. 14 of the Customs Bulletin, proposing to revoke NY D84633 and to revoke the treatment pertaining to sno-cone makers. No comments were received in response to the notice. Consequently, Customs has revoked that decision and the revocation will be effective 60 days from its publication in the Customs Bulletin, with publication expected on or about May 22, 2002.

HOLDING:

The "Mr. Snowman Sno-Cone" maker is classifiable under subheading 9503.90, HTSUS, as an other toy.

The protest should be allowed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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