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HQ 965507




May 8, 2002

CLA-2 RR:CR:GC 965507JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.00

Mr. Ned Marshak
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, NY 10004

RE: NY 843670 revoked; "Ice Busters sno-cone" maker

Dear Mr. Marshak:

This letter is to inform you that Customs has reconsidered New York Ruling Letter (NY) 843670, issued to you August 1, 1989, on behalf of K-Mart, concerning the classification of a sno-cone machine under the Harmonized Tariff Schedule of the United States (HTSUS). After a review of that ruling, it has been determined that the classification of the sno-cone machine in heading 8210, HTSUS, was incorrect. For the reasons that follow, this ruling revokes NY 843670.

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 843670 and to revoke the treatment pertaining to sno-cone makers. No comments were received in response to the notice.

FACTS:

The merchandise is identified as "Ice Busters", Code No. 04-25-36, described as a machine with metal ice shaver, 1 package of soft drink mix, 2 disposable cups, a plastic ice scoop, and instructions to make "sno-cone" at home with any soft drink mix.

ISSUE:

Whether the "Ice Busters" sno-cone machine 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 Harmonized Tariff Schedule of the United States Annotated (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In interpreting the HTSUS, the Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, may be used. The ENs, although not dispositive or legally binding, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The HTSUS provisions under consideration for the classification of the sno-cone machine 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.

Although Customs does not have any description of the product beyond the initial ruling, 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 inclusion of the soft drink mix, 2 disposable cups, and the plastic ice scoop, suggest both the limited use and the low-volume 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..

HOLDING:

The "Ice Busters sno-cone maker is classifiable under subheading 9503.90, HTSUS, as an other toy.

NY 843670 is hereby REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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