HQ 956566 - 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 - United States International Trade Commision Rulings

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HQ 956566

August 31, 1994

CLA-2 CO:R:C:F 956566 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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