HQ 965321

May 9, 2002

CLA-2 RR:CR:GC 965321 JGB

CATEGORY: Classification

TARIFF NO.: 9503.90.00

Port Director

U.S. Customs Service

1 East Bay Street

Savannah, GA 31401

RE: Protest 1703-01-100170; \"Mr. Snowman Sno-Cone\" maker

Dear Port Director:

This is our decision on Protest 1703-01-100170, filed by counsel for the
protestant, Wal-Mart Stores, Inc., against your decision in the
classification of the \"Mr. Snowman Sno-Cone\" maker under the
Harmonized Tariff Schedule of the United States (HTSUS). The entry, made
in 2000, was liquidated July 13, 2001, and the protest timely filed on
September 6, 2001.

**FACTS**:

The merchandise is identified as \"Mr. Snowman Sno-Cone\" maker, item
#7119, described as a machine used by children to make flavored shaved
ice. The top of the sno-cone maker is a plastic snowman that also serves
as a tool to press the ice cubes against the ice to be shaved. Removing
the snowman reveals an open plastic chute. At the bottom of the chute
are four small metal blades mounted on a plastic disk. Turning a plastic
handle rotates the blades and shaves the ice. The ice shavings then fall
into an attached plastic container. Included with the Sno-Cone Maker are
2 disposable cups, 2 plastic spoons, 1 package of soft drink mix, and 1
plastic syrup applicator in the shape of a snowman.

You classified the \"Mr. Snowman Sno-Cone\" maker in subheading
8210.00.00, HTSUS, the provision for hand-operated mechanical
appliances, weighing 10 kg or less, used in the preparation,
conditioning or serving of food or drink, and base metal parts thereof.

The protestant claims that the \"Mr. Snowman Sno-Cone\" maker is
classified in subheading 9503.90.00, HTSUS, the provision for \"Other
toys; reduced-size \"scale\" models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories thereof:
Other.\"

**ISSUE**:

Whether the \"Mr. Snowman Sno-Cone\" maker is classified in heading
8210, HTSUS, which provides for hand-operated mechanical appliances,
weighing 10 kg or less, used in the preparation, conditioning or serving
of food or drink, and base metal parts thereof, or in subheading
9503.90.00, HTSUS, other toys.

**LAW AND ANALYSIS**:

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides that the classification of
goods shall be determined 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
may then be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the official
interpretation of the Harmonized System at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.

The HTSUS provisions under consideration for the classification of the
sno-cone maker are as follows:

> 8210: Hand-operated mechanical appliances, weighing 10 kg. or less,
> used in the preparation, conditioning or serving of food or drink, and
> base metal parts thereof.
>
> 9503: Other toys; reduced-size \"scale\" models and similar
> recreational models, working or not; puzzles of all kinds; parts and
> accessories thereof.

This article is described by both headings. GRI 3 provides, in pertinent
part, "When, by application of rule 2(b) or for any other reason, goods
are, *prima facie*, classifiable under two or more headings,
classification shall be effected as follows: (a) The heading which
provides the most specific description shall be preferred to headings
providing a more general description.\" However, under the terms of GRI
1, \"any relative section or chapter notes\" must be considered before
applying the GRI\'s beyond GRI 1. Heading 8210, HTSUS, falls into
Section XV. Note 1(l) to Section XV excludes \"Articles of Chapter 95
(for example, toys, games, sports equipment).\" Therefore, if the
product meets the standards of heading 9503, HTSUS, it cannot be
classified in heading 8210, HTSUS.

An examination of the sample demonstrates that the product appears to be
of the kind that are limited use, food preparation articles, marketed
and sold as toys, and providing manipulative play and role-play for
young children. The articles included with the set, such as 2 disposable
cups, and the plastic spoons, suggest both the limited use and the
low-volume sno-cone production of the article, typical for amusement
activities for young children. In short, this product could not be
confused with a \"real\" sno-cone maker that would typically have an
electric motor and be designed to produce scores of sno-cones in a day.
The ENs to heading 9503 state that \"certain toys (e.g., electric irons,
sewing machines, musical instruments, etc.) may be capable of a limited
\'use,\'; but they are generally distinguishable by their size and
limited capacity from real sewing machines, etc.\" Because of the
limited use, and the other factors indicated, *supra*, the article is
classifiable in subheading 9503.90, HTSUS, as an other toy.

Because classification in chapter 82 is precluded by Note 1(l) to
Section XV, it is not pertinent to discuss classification of this
article in heading 8210.

This decision is in accord with Headquarters Ruling Letter (**HQ**)
961906, dated July 2, 1999, which classifies a similar product, the
Snoopy Snow Cone Machine in subheading 9503.90, HTSUS. It is noted that
this protest was denied in accordance with the decision in New York
Ruling Letter (**NY)** D84633. Pursuant to section 625(c)(1), Tariff Act
of 1930 (19 U.S.C. 1625(c)), 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), a notice was
published on April 3, 2002, in Vol. 36, No. 14 of the [Customs
Bulletin,]{.smallcaps} proposing to revoke NY D84633 and to revoke the
treatment pertaining to sno-cone makers. No comments were received in
response to the notice. Consequently, Customs has revoked that decision
and the revocation will be effective 60 days from its publication in the
[Customs Bulletin]{.smallcaps}, with publication expected on or about
May 22, 2002.

**HOLDING**:

The \"Mr. Snowman Sno-Cone\" maker is classifiable under subheading
9503.90, HTSUS, as an other toy.

The protest should be **allowed.**

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the

decision must be accomplished prior to mailing the decision. Sixty days
from the date of the decision, the Office of Regulations and Rulings
will make the decision available to Customs personnel, and to the public
on the Customs Home Page on the World Wide Web at www.customs.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division