HQ 082969: Protest No. 3801-7-001830, plastic snow shovels

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 082969

                          May 21, 1990

CLA-2 CO:R:C:G  082969  JMH

CATEGORY:  Classification

TARIFF NO.:  772.15

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, MI  48266

RE:  Protest No. 3801-7-001830, plastic snow shovels

Dear Sir:

     The following is our decision regarding the Protest for
Further Review No. 3801-7-001830, dated October 2, 1987.  At
issue is the classification under the Tariff Schedules of the
United States (TSUS) of Entry No. 86231306.  The entry consists
of snow shovels imported by St. Lawrence Manufacturing Canada,
Inc.

FACTS:

     The articles in question, snow shovels, were entered
September 19, 1987, at the Detroit port.  The snow shovels were
imported from Canada by St. Lawrence Manufacturing Canada, Inc.
The shovel in question is model number 705.  This model has an
overall length of 34 inches.  No. 705's blade is 10 1/2 inches
high, 11 7/8 inches wide, and 1 3/4 inches in depth.  The shovel
is made of plastic.

     Upon entry, the articles were classified under item 737.95,
TSUS, as "[t]oys, and other parts of toys, not specially provided
for...[o]ther..."  The importer believes that the shovels should
be classified under item 648.51, TSUS, as "...[d]rainage tools,
scoops, shovels, and spades, and parts thereof..."

ISSUE:

     Whether the snow shovel should be classified under item
737.95, TSUS, as "[t]oys, and other parts of toys, not specially
provided for...[o]ther...", under item 648.51, TSUS, as
"...[d]rainage tools, scoops, shovels, and spades, and parts

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thereof...", or under item 772.15, TSUS, as "...household
articles not specially provided for; all the foregoing of rubber
or plastic...[o]ther..."

LAW AND ANALYSIS:

     The importer contends that the snow shovel should be
classified within item 648.51, TSUS, since the item is an eo
nomine provision for shovels.  Although shovels are specifically
provided for in item 648.51, this provision is within Schedule 6,
Part 3, TSUS.  Schedule 6, Part 3 covers metal and metal
products.  The legislative intent was to include only shovels
made of metal within item 648.51.  Therefore, the plastic snow
shovel in question cannot be classified under item 648.51.

     You state that you believe this shovel should be classified
in item 737.95, TSUS, as "[t]oys, and other parts of toys, not
specially provided for...[o]ther..."  A "toy" for tariff purposes
is "any article chiefly used for the amusement of children or
adults."  Schedule 7, Part 5, Subpart E, Headnote 2, TSUS.
General Headnote 10(e)(i), TSUS states:

          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 articles of that class
     or kind to which the imported articles belong, and the
     controlling use is the chief use, i.e., the use which
     exceeds all other uses (if any) combined...

     In order to be a toy, the snow shovel must be chiefly used
for amusement purposes.  When amusement and utility become
locked in controversy, the question becomes one of determining
whether the amusement is incidental to the utilitarian purpose or
the utilitarian purpose is incidental to the amusement.
Childcraft Education Corp. v. United States, 572 F. Supp. 1275,
reversed 742 F.2d 1413 (1984).  Articles are not toys if they are
reasonably capable of use for some practical purpose other than
the amusement of children.  United States v. Globe Overseas
Corp., 13 CuApp 10, T.D. 40849 (1925), affirmed G.A. 8867, T.D.
40424.

     The snow shovel is not a toy because it is not chiefly used
for amusement purposes.  That it is a smaller size for use by
children does not take away its utilitarian value nor make it a
toy.  The shovel is not of such a small size that its use is
limited to very young children who merely imitate snow shoveling.
Advertising the shovel as "[w]inter fun for everyone" does not
make the shovel a toy.  Shoveling snow is a practical activity,
not an amusement.  Any amusement to be gained from shoveling snow

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is purely incidental to the utilitarian purpose of the act.
Therefore, since the shovel is not chiefly used for amusement, it
is not a toy and it cannot be classified in item 737.95.

     Treasury Decision 70-254(17) held that a snow shovel that
was in chief value of plastic, and was used in areas adjacent to
private homes was classified under the provision for household
articles not specifically provided for, of plastic, under item
772.15, TSUS.  T.D. 70-254(17), 4 Cust. B. & Dec. 782, 785
(December 1970).  The snow shovel in that situation is similar to
the shovel in question.  The current shovel is in chief value of
plastic.  The advertising for it is aimed at family use.
Families would usually shovel together at their homes.  Thus, the
proper classification for this snow shovel is in item 772.15,
TSUS, as "...household articles not specially provided for; all
the foregoing of rubber or plastic...[o]ther..."

HOLDING:

     The St. Lawrence Manufacturing Canada, Inc. snow shovel
model number 705 is made of plastic, and thus, cannot be
classified under item 648.51, TSUS.  Item 648.51 covers shovels
made of metal.  The shovel's chief use is for shoveling snow
which is a utilitarian activity, not an amusement.  Therefore,
the shovel is not a toy under item 737.95, TSUS.  The snow shovel
is properly classified as "...household articles not specially
provided for; all the foregoing of rubber or
plastic...[o]ther..." in item 772.15, TSUS.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division