Revocation of New York Ruling Letter (NYRL) 869189; Thetariff classification of plastic "Friction Pets" made in Chinaand imported from Hong Kong.

HQ 951129 June 9, 1992 CLA-2 CO:R:C:F 951129 STB CATEGORY: Classification TARIFF NO.: 9503.49.0020 Ms. Helen H. Seldon W.M. Stone & Co., Inc. 838 Granby Street Norfolk, VA 23510 RE: Revocation of New York Ruling Letter (NYRL) 869189; The tariff classification of plastic "Friction Pets" made in China and imported from Hong Kong. Dear Ms. Seldon: The purpose of this letter is to revoke NYRL 869189, dated December 6, 1991, which classified two plastic figures known as "Friction Pets." NYRL 869189 had been issued to you in response to your November 25, 1991, request for a tariff classification ruling. We have examined samples of the merchandise for the purposes of the present letter. FACTS: The two samples consist of a plastic bunny with the words "Happy Bunny" printed on its stomach and a plastic chick with the words "Cheerful Chick" printed on its stomach. Both samples are identified as Item # 751164. The bunny and the chick have rubber covered plastic wheels located underneath them. Friction activates the movement of the bunny or chick by quickly rolling the wheels against a flat surface and then releasing the plastic animal. The movement does not involve the use of springs. ISSUE: Whether the Friction Pets should be classified as statuettes and other ornamental articles of plastics or whether they should be classified as toys? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the -2- General Rules of Interpretation (GRI's). The systematic detail of the harmonized system 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 Explanatory Notes (EN's) 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 GRI's. In NYRL 869189, the Friction Pets were classified in subheading 3926.40.0000, HTSUSA, the provision for statuettes and other ornamental articles of plastics, dutiable at a rate of 5.3 percent ad valorem. Upon further examination of the Chapter Notes and Explanatory Notes to chapters 39 and 95, Customs has reevaluated its position and determined that the subject articles should be classified in chapter 95, HTSUSA, and specifically in heading 9503, HTSUSA, the provision for toys. The EN's to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase "designed for the amusement of" is generally understood to indicate the use of an article will be a factor when classification in Chapter 95 is being considered. Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that, absent language to the contrary, the following applies: A tariff classification controlled by use (other than actual 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. It is clear that the Friction Pets are designed for, and will be used for, amusement. This use will be their principal use. Note 2(u) to chapter 39, HTSUSA, excludes all "Articles of chapter 95 (for example, toys, games, sports equipment)" from classification therein. HOLDING: The "Happy Bunny" and "Cheerful Chick", also known as "Friction Pets", are properly classified in chapter 95, and -3- specifically in subheading 9503.49.0020, HTSUSA, the provision for toys representing animals or non-human creatures, other, toys not having a spring mechanism, other. The applicable duty rate is 6.8 percent ad valorem. This notice should be considered a revocation of NYRL 869189 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 869189 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 869189 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. Sincerely, John Durant, Director Commercial Rulings Division