HQ 956261

May 26, 1994

CLA-2 CO:R:C:F 956261 LPF

CATEGORY: Classification

TARIFF NO.: 2851.00.0090

Mr. Marvin Double

Double Enterprises

10520 Yonge St., Unit 35B, Suite 312

Richmond Hill, Ontario L4C 3C7

Canada

RE: Silly Sprays Novelty Items; Heading 2851, Other inorganic

compounds, including distilled water; Not 9503 toys; Not

9505 practical joke articles

Dear Mr. Double:

This is in response to your letter of March 12, 1994,

requesting the proper classification under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA) of Silly Sprays

novelty items. You submitted a sample as well as photographs with

your request for a binding ruling.

FACTS:

The merchandise consists of plain distilled water pressurized

with nitrogen, put up in a can. When the nozzle is pushed, a spray

of water is emitted. The product, which is available in four

varieties, serves as a novelty gift or souvenir. \"Birthday

Repellent\" might be a gift for an individual unhappy about facing

another birthday. \"Instant Vacation\" and \"Weekend Extender\" would

be intended for an individual without leisure or vacation time.

\"Personal Space\" might be a gift for a highly stressed individual.

ISSUE:

Whether the Silly Sprays are classifiable within heading 9503

as toys; heading 9505 as practical joke articles; heading 2851 as

other inorganic compounds, including distilled water; or elsewhere

in the HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their

appropriate order provide a framework for classification of

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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. 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 HTSUS by offering guidance in

understanding the scope of the headings and GRIs.

Two headings worthy of consideration in this case are heading

9503 providing for toys and heading 9505 providing for, among other

things, practical joke articles. With regard to heading 9503, the

ENs to Chapter 95 indicate that \"this chapter covers toys of all

kinds whether designed for amusement of children or adults.\" It

has been 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. In this case, since the articles will not be

principally used as toys, they are not classifiable within heading

9503\. In our opinion, the articles do not provide the manipulative

play value or frivolous entertainment characteristic of toys.

With regard to heading 9505, the EN indicate that, among other

things, the heading includes:

\(B\) Conjuring tricks and novelty jokes, e.g., packs

of cards, tables, screens and containers, specially

designed for the performance of conjuring tricks;

novelty jokes such as sneezing powder, surprise

sweets, water-jet button-holes and \"Japanese flowers.\"

In determining whether merchandise qualifies as a practical

joke article, Customs has utilized the standard articulated in

Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408 C.D.

4304 (1970). In that decision, the court reviewed several

dictionary and court case definitions of the term \"practical joke,\"

determining that a practical joke article is one which causes humor

by \"somehow placing an individual at a disadvantage through a trick

or prank.\"

Accordingly, in Headquarters Ruling Letters (HRLs) 952472,

issued February 8, 1993 and 950564, issued March 13, 1992, a

Strobie Ghost consisting of a battery operated ghost figure

emitting screams and flashing lights and Mr. Piddle Bib, a penal

bib with brightly colored tie strings to be worn around one\'s hips,

both were classified as other than practical joke articles. On the

contrary, in HRLs 953187, issued August 5, 1993, 953188, issued May

18, 1993, and 089529, issued October 1, 1991, rubber squirt figures

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which when squeezed emitted water from the figure\'s mouth and Weepy

the Wee Wee consisting of a figure which, when his pants were

pulled down, would squirt water out from a hole in the front pelvic

area, were classified as practical joke articles. In the latter

decisions, as opposed to the former decisions, Customs maintained

that the merchandise would surprise and/or trick an individual,

placing them at a humorous disadvantage.

It is our opinion that the subject merchandise, although

humorous, does not surprise and/or trick an individual nor place

one at a humorous disadvantage. In accordance with the definition

articulated in the Parksmith case as well as the applicable EN, the

Silly Spray novelties do not qualify as practical joke articles and

must be classified elsewhere.

Heading 2851, HTSUSA, provides for, inter alia, other

inorganic compounds, including distilled water. The EN to 2851

indicate that, \"the heading covers only distilled water, re-

distilled or electro-osmotic water, conductivity water and water

of similar purity, including water treated with ion exchange

media.\" Because it is our understanding that the Silly Sprays are

comprised of plain distilled water, the terms of the heading as

confirmed by the applicable EN indicate that the articles are

classifiable, pursuant to GRI 1, within heading 2851.

HOLDING:

The Silly Sprays are classified in subheading 2851.00.0090

as, \"Other inorganic compounds (including distilled or conductivity

water and water of similar purity)\..., Other.\" The general column

one rate of duty is 2.8 percent ad valorem.

Advance rulings specifically may be requested with respect to

prospective, current, and ongoing North American Free Trade

Agreement (NAFTA) transactions from the Office of Regulations and

Rulings or the Area Director of Customs, New York Seaport. In this

regard, it is suggested that you consult the procedures relating

to advance NAFTA rulings in interim regulations 19 C.F.R. 181,

Subpart I, as published in the Federal Register of December 30,

1993\.

Sincerely,

John Durant, Director

Commercial Rulings Division