CLA-2 CO:R:C:F 956566 LPF
Mr. Ron Sias
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, NY 10038
RE: Classification of plastic water gun suspended on textile cord; Modification of NYRL 868343; Heading 9503, HTSUSA, other toy; Not 7117, imitation jewelry; HRLs 953102, 952296
Dear Mr. Sias:
In New York Ruling Letter (NYRL) 868343, issued November 15,
1991, merchandise known as the "Tropical Club" (item #66217 SG)
consisting of a plastic water gun suspended on a textile cord and
plastic sunglasses was classified under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). The water gun
was classified in subheading 7117.90.5000, HTSUSA, as imitation
jewelry, other, other, valued over 20 cents per dozen pieces or
parts. We have reviewed that ruling and have found it to be
partially in error. The correct classification of the water gun
is as follows.
FACTS:
The article at issue, imported from China, consists of a
plastic water gun resembling a seahorse, attached to a textile
neck cord. Pursuant to section 625, Tariff Act of 1930 (19
U.S.C. 1625), 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 (1993)
(hereinafter section 625), notice of the proposed modification of
NYRL 868343 was published on July 27, 1994, in the Customs
Bulletin, Volume 28, Number 30.
ISSUE:
Whether the water gun suspended on a textile neck cord is
classifiable in heading 9503 as other toys or in heading 7117 as
imitation jewelry.
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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
The subject article potentially is classifiable within
heading 9503 as other toys or within 7117 as imitation jewelry.
In regard to heading 9503, the ENs to Chapter 95 indicate that
"this chapter covers toys of all kinds whether designed for the
amusement of children or adults." It is 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.
It is our position that the article, consisting of a water
gun, is a toy. The water gun is a plaything which a child
repeatedly will take off their neck for the purpose of filling it
with water and squirting others. Even if worn around the neck,
it is apparent the child principally will use the article to
squirt others. Accordingly, the article is designed and used
principally for amusement.
In regard to heading 7117, Legal Notes 8 and 10 to Chapter
71 indicate that the expression "imitation jewelry" includes any
small objects of personal adornment, gem-set or not, such as
rings, bracelets, necklaces, brooches, earrings, watch chains,
fobs, pendants, etc. The subject article does not fit the
description of imitation jewelry provided in the Legal Notes.
Webster's Third New International Dictionary (1968), defines a
necklace as "1(a) (1): a string of beads or other small objects
(as precious stones) that is worn about the neck as an ornament
(2): a chain or band usu. of metal often specially decorated...
and worn about the neck as an ornament." This article, in its
entirety, is not a necklace, because it is not worn around the
neck as an ornament. The American Heritage Dictionary Second
College Edition (1985), defines a pendant as "something suspended
from something else, esp. an ornament or piece of jewelry
attached to a necklace or bracelet." The water gun is not a
pendant because it is not an ornamental article or piece of
jewelry attached to a necklace. The subject article, simply, is
not worn for adornment.
This decision is in accord with Headquarters Ruling Letters
(HRLs) 953102, issued April 26, 1993, and 952296, issued December
15, 1992, where plastic bottles designed as penguins, hearts, and
bear cubs containing bubble solution and a wand for blowing
bubbles as well as a plastic water gun resembling a fish, both
suspended on textile cords, were classified as toys. Similarly,
in the instant case, the child-consumer would not intend to wear
the water gun as an article of ornamentation, but rather intend
to play with the merchandise for the purpose of amusement. The
textile cord is not principally designed to enable one to wear
the water gun, but primarily allows one to handle and carry the
water gun in order to repeatedly fill it with water and squirt
others. The textile cord is similar to the carrying or wearing
straps of a camera or pair of binoculars which do not affect the
function of the merchandise. Accordingly, the subject article
principally is used for amusement and is classified, pursuant to
GRI 1, within heading 9503 as other toys. Although the article
is designed in an animal motif, in its entirety, it is not
accurately described as a "toy representing an animal," because
of the inclusion of the water gun. Instead, it is classifiable,
pursuant to GRI 1 in accordance with GRI 6, as an "other" toy in
subheading 9503.90.60, the appropriate provision for water guns
and their accoutrements.
HOLDING:
The water gun suspended on a textile cord is classifiable in
subheading 9503.90.6000, HTSUSA, as "Other toys...: Other: Other:
Other toys (except models), not having a spring mechanism." The
applicable rate of duty is 6.8 percent ad valorem. The other
article comprising the "Tropical Club" remains classified as held
in NYRL 868343.
NYRL 868343 is modified accordingly.
In accordance with section 625, this ruling will become
effective 60 days from its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 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