HQ 951129: Revocation of New York Ruling Letter (NYRL) 869189; Thetariff classification of plastic "Friction Pets" made in Chinaand imported from Hong Kong.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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


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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

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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