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HQ 960546




June 25, 1998

CLA-2 RR:CR:GC 960546 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030

Mr. Joseph P. Cox
Stein, Shostak, Shostak & O'Hara
515 South Figueroa Street, Suite 1200
Los Angeles, CA 90071

RE: 36 inch inflatable tube (item # T-8636); NYRL 834442

Dear Mr. Cox:

This is in reference to your May 29, 1997, letter on behalf of Sunco Products, Inc., requesting reconsideration of New York Ruling Letter (NYRL) 834442 dated January 30, 1989, concerning the classification of a 36 inch inflatable tube (item # T-8636) under subheading 3926.90.7500, of the Harmonized Tariff Schedule of the United States (HTSUS), as a plastic inflatable article not elsewhere specified or included. A sample, as well as catalog pictures of the article, was submitted for our review.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], 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), notice of the proposed revocation of NYRL 834442 was published, on May 20, 1998, in the Customs Bulletin, Volume 32, Number 20. No comments were received in response to the notice.

FACTS:

The article is described as a 36 inch inflatable tube (item # T-8636). It is made of 8-gauge vinyl and comes in either blue or pink. It is used as a swim ring/pool toy.

ISSUE:

Whether the 36 inch inflatable tube (item # T-8636) is classifiable as a toy under heading 9503, HTSUS, or as other plastic inflatable articles not elsewhere specified or included under heading 3926, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS is such that virtually all 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 GRI's may then be applied. The subheadings under consideration are as follows:

3926.90.7500 Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pneumatic mattresses and other inflatable articles, not elsewhere specified or included

9503.90.0030 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other: Other toys (except models), not having a spring mechanism

Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter does not cover:...[a]rticles of chapter 95 (for example, toys, games, sports equipment.)." Therefore, we must first determine whether the 36 inch inflatable tube (item # T-8636) is classifiable as a toy for tariff purposes. If so, it is excluded from classification in subheading 3926.90.7500, HTSUS, by operation of Note 2(v) to Chapter 36.

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether "designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

The tube's bright colors appeal to a sense of fun and play and its smaller size and lower gauge allow it to be thrown around, and make it generally, easy to manipulate. These characteristics indicate that the 36 inch inflatable tube (item # T-8636) is designed principally to amuse. Such a finding is consistent with the classification of other inflatable tubes. In NYRL B84876 dated May 16, 1997, we classified a 30 inch vinyl inflatable tube (item # T-8631) as a toy. Furthermore, in NYRL 813812 dated August 23, 1995, we classified dive rings and sticks which were articles to be retrieved by surface diving for them, and Pop-N-Lock and Shape Sorting floaties which are plastic shapes which are fitted or attached together and used by children under 3 in a pool, as toys.

As a result of finding the 36 inch inflatable tube (item # T-8636) to be a toy properly classified in Chapter 95, classification of the article elsewhere in the HTSUS is precluded.

HOLDING:

The 36 inch inflatable tube (item # T-8636) is classified under subheading 9503.90.0030, HTSUS, which provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof ): [o]ther: [o]ther toys (except models), not having a spring mechanism," with a general 1998 column one duty rate of free.

NYRL 834442 is revoked. In accordance with 19 U.S.C. publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) 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

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