CLA-2 RR:CR:GC 962087 JRS
Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-98-100624; "Monster Eye" Assortment straws; Heading 9503; HQ 962595 revoked NY B87341 and affirmed NY A85583
Dear Port Director:
The following is our decision regarding Protest 2704-98-100624, which concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of "Monster Eye" Assortment straws.
FACTS:
The "Monster Eye Assortment" straws also known as "Taco Bell Eyeball Straws" were the subject of New York Ruling Letter (NY) B87341, dated July 22, 1997, issued to Tricon Restaurant Services Group, Inc. (formerly PRS, a Division of PepsiCo, Inc.).
In accordance with NY B87341, the subject merchandise manufactured in China was entered on eight separate entries between August 15, 1997 and October 4, 1997. On March 13, 1998, all eight entries were liquidated pursuant to NY B87341 under subheading 3917.32.6050, HTSUS, which provides for "...other tubes, pipes and hoses, not reinforced or otherwise combined with other materials, without fittings...other...other" with a 3.1% ad valorem duty. On June 3, 1998, TRSG, Inc. timely filed a protest. In HQ 962595, dated June 4, 1999, Customs has taken action under 19 U.S.C. 1625(c) to revoke NY B87341.
The "Monster Eye Assortment" (Item No. 53095) consists of six different colors and designs of plastic eyeball straws. All the straws are twirled or looped around a securely attached plastic eye "socket" which is located near the upper portion of all the straws. The eye socket is fitted with a "floating eyeball" which is easily removable from the socket. The eyeball "socket" is a holder designed with "veins" and "lashes" to represent both an eye socket and eyelid. The "floating eyeball" is a 1½" diameter clear ball that has an inner ball of an "eyeball" with a balance weight and glow-in-the-dark properties and it is filled with a clear liquid (presumably water).
Each eyeball straw is packaged in an individual plastic bag. On the front of the bag is the name of the particular "Monster Eye Assortment" straw contained therein. The name of the toy portion (i.e., "Alien Eye," "Nasty Eye," "Shattered Eye," "Serpent Eye," "Brain Eye," and "Monster Eye") is written in colored lettering at the top of the package in large type. The packaging also contains consumer product safety information, i.e., "Recommended for children ages 3 and up." On the back of the bag is a drawing or diagram of the item demonstrating how the eyeball can be easily removed from the socket. Written on the back of the bag is a recommendation, in English and French, to pop the eyeball out of the eye socket "for extra fun." In addition, the following recommendation appears at the bottom of the bag in bold typeface: "Hand wash before and after each use, not dishwasher safe."
Each straw measures approximately 13½ inches in height, which is larger than the 8 inch straws ordinarily available. The straw is functional in the abstract. The "eyeball" straw is a 1997 Halloween promotional item for the "fast food" restaurant.
Samples of "Monster Eye Assortment" straws were submitted for our examination in addition to a video of a commercial and other promotional materials relating to the merchandise, namely, a poster and display items which were put up in the fast food restaurant.
Protestant contends that the "Monster Eye" drinking straw assortment should be classified as a "toy" under subheading 9503.90.0045, HTSUS, the provision for "...other toys and models," with a free rate of duty because the article is intended to amuse and because of its severe limitations as a functional drinking straw.
The HTSUS headings under consideration are as follows:
3917 [t]ubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics
9503 [o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
ISSUE:
Whether the "Monster Eye Assortment" is classifiable as straws or toys for tariff purposes.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI’s) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ." Chapter 39 of the HTSUS provides for plastics and articles thereof and Chapter 95 covers toys, games and sports equipment and part and accessories thereof. Chapter Note 2 (v) to Chapter 39, HTSUS, states that this chapter does not cover: “[a]rticles of [c]hapter 95 (for example, toys, games, sports equipment).” As such, if the "eyeball straws" are classifiable as a toy, it is excluded from classification in heading 3917 by operation of Note 2(v) to Chapter 39.
We have considered the exact merchandise under this protest in HQ 962595, dated June 4, 1999. We incorporate by reference the "Law and Analysis" section of HQ 962595 in this protest decision. As fully discussed in HQ 962595, copy enclosed, the article’s use as a straw is severely limited by its shape (design/structure), overall size, height and, most particularly, its weight. We are in agreement with protestant’s contention that the straw with its fixed eyeball "socket" was designed to function as a "delivery device" for the eyeball toy (as that of a wand or handle for display and fun), and its use as a functional straw to sip beverages was only of secondary, or minor, importance to its principal use as a toy. The "eyeball" straw as an article "designed for the amusement of children or adults" is classifiable as a toy under heading 9503 for tariff purposes.
HOLDING:
Under GRI 1, the "Monster Eye" Assortment straws are classified under subheading 9503.90.0045, HTSUS, the provision for "...other toys and models," with a free rate of duty.
The protest should be ALLOWED on the basis of the revocation of NY B87341 by HQ 962595, dated June 4, 1999, under 19 U.S.C. 1625(c). In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, 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
Enclosure