Revocation of NY J81414; Tariff classification of an inflatable guitar from China

HQ H298843 September 26, 2019 OT:RR:CTF:CPMM H298843 MAB CATEGORY: Classification TARIFF NO.: 3926.90.7500 Mr. Dennis Shostak Customs Compliance Officer The Paper Magic Group, Inc. 54 Glenmaura National Blvd., Suite 200 Moosic, PA 18507 RE: Revocation of NY J81414; Tariff classification of an inflatable guitar from China Dear Mr. Shostak: On February 27, 2003, U.S. Customs and Border Protection (“CBP”) issued The Paper Magic Group, Inc., New York Ruling Letter (“NY”) J81414. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of an inflatable guitar from China. We have reviewed additional information regarding this product and have found NY J81414 to be in error with respect to the tariff classification. 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, notice proposing to revoke NY J81414 was published on July 31, 2019, in Volume 53, Number 26, of the Customs Bulletin. No comments were received in response to this Notice. FACTS: In NY J81414, CBP found the following: The sample submitted, Item #6546680, 42” Inflatable Guitar, is a toy rubber musical instrument that, when inflated by air, resembles a six string electric guitar. The item has the words “Rock ‘n Roll” on its body and when fully inflated measures 42 inches in length. The toy guitar does not play actual notes, but is designed to provide amusement through the simulation of guitar playing. The applicable subheading for Item #654660, 42” Inflatable Guitar, will be 9503.50.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: toy musical instruments and apparatus and parts and accessories thereof.” The rate of duty will be free. ISSUE: Whether the subject inflatable guitar is classified as “other articles of plastics” in heading 3926, HTSUS, or as “other toys” in heading 9503, HTSUS. LAW AND ANALYSIS: The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings 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 in order. The 2018 HTSUS headings under consideration are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: * * * * * 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof... * * * * * Chapter 39, Note 2(y) states:      2. This chapter does not cover: (y) Articles of chapter 95 (for example, toys, games, sports equipment) * * * * * Additional U.S. Rule of Interpretation 1(a), HTSUS: In the absence of special language or context which otherwise requires – 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 * * * * * Classification within chapter 39 is subject to chapter 39, Legal Note 2(y), which excludes from chapter 39 goods that are classifiable in chapter 95, HTSUS. Therefore, as long as the subject article is described in chapter 95, it is precluded from classification in any of the provisions of chapter 39, even if it is described therein. We must therefore first address whether the subject article is described in heading 9503, HTSUS. Heading 9503, HTSUS, is the provision for “other toys.” Although the term “toy” is not defined in the HTSUS, in Minnetonka Brands, Inc. v. United States, 24 CIT 645, 651, 110 F. Supp. 2d 1020, 1026 (2000), the Court of International Trade (CIT) held that an “object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Id. The court also concluded that heading 9503, HTSUS, is a "principal use" provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In order to be considered a toy, the inflatable guitar must be designed for amusement and not practicality. Internet research reveals that identical items imported into the United States are marketed and used as party decorations and favors. Thus, any amusement value provided by the inflatable guitar is incidental to its practical purpose as a party favor or decoration. This is because when inflated with air, although it is shaped like an electric guitar, the article is not operable as a music-maker. It is not capable of emitting sound. Instead, the article is merely a depiction of an electric guitar with six strings and keys printed on inflatable plastic. We therefore find that the inflatable guitar is not a toy classifiable in heading 9503, HTSUS. Accordingly, we consider whether the inflatable guitar is classified in heading 3926, HTSUS, which provides, inter alia, for “other articles of plastics.” In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 39.26 states, in relevant part, that heading 3926, HTSUS “covers articles, not elsewhere specified or included, of plastics…” Consistent with EN 39.26, we have previously classified an inflatable plastic article with a depiction of a musical instrument printed on it in heading 3926, HTSUS. See NY C82463 (Dec. 18, 1997), wherein CBP classified an inflatable plastic saxophone in subheading 3926.90.7500, HTSUSA. Consequently, as an article made up entirely of plastic that is not described by heading 9503 or elsewhere in the HTSUS, it is our decision that the inflatable guitar is classified in heading 3926, HTSUS, as “Other articles of plastics…” Specifically, it is classified in subheading 3926.90.7500, HTSUSA, as: “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.” Our decision is also consistent with rulings wherein we classified musical instruments that provide amusement and are operable as music-makers by emitting sound as toys in heading 9503, HTSUS. See e.g. NY L85699 (June 22, 2005), classifying various toy musical instruments, including an electronic guitar mixer featuring button modes for rap, funk, hip-hop, rock and pop, in subheading 9503.50.0000, HTSUS; NY L87114 (Aug. 30, 2005), classifying toy musical keyboards in subheading 9503.50.0000, HTSUS; and NY M86122 (Aug. 29, 2006), classifying percussion tubes and a keyboard in subheading 9503.50.0000, HTSUS, as “… electronic toys designed to provide amusement by allowing one to ‘create’ their own music.” HOLDING: Pursuant to GRI 1 and Additional U.S. Rule of Interpretation 1(a), HTSUS, the subject inflatable saxophone is classified in heading 3926, HTSUS. It is specifically provided for in subheading 3926.90.7500, HTSUSA, which provides for: “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.” The column one, general rate of duty is 4.2 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompany duty rates are provided at https://hts.usitc.gov/current. EFFECT ON OTHER RULINGS: NY J81414, dated February 27, 2003, is hereby REVOKED as set forth above with regard to the classification of the inflatable guitar described therein. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division