CLA-2 CO:R:C:M 089996 KCC
Richard M. Wortman, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Electronic Module; sound; light; GRI 1; 9503.90.60; EN
Chapter 95; EN 95.03; part; Gallagher & Ascher Company;
8531.80.00; EN 85.31; 8519.99.00; EN 85.19; 088044; 086838;
EN 85.43; EN 84.79; marking exception; 19 CFR 134.34;
9802.00.80
Dear Mr. Wortman:
This is in response to your letter dated June 18, 1991, to
Customs in New York, on behalf of Modern Publishing, regarding
the tariff classification of an electronic module under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). You also ask for a marking exception for the
electronic module. Your letter and samples were forwarded to
this office for a response. As requested, your samples will be
returned under separate cover.
FACTS:
The electronic module produces various sound effects as well
as a light which illuminates the selected sound on the face of
the module. The electronic module is comprised of a pre-
programmed integrated circuit, a printed circuit board assembly
which has eight contact points, a movable electrical switch
assembly with a lamp, a battery case, and electrical wiring. All
of these components are contained in a rectangular shaped plastic
housing. A strip of material depicting eight different drawings,
such as a sheep, pig, bird, rain, cloud, dog, cat, wind cloud,
and a cow is attached on the surface of the plastic housing unit.
The electronic module functions by moving the switch below one of
these pictured drawings whereby a sound is emitted to simulate
the chosen object and a light is activated.
After importation into the U.S., the electronic module will
be permanently affixed to a book. The electronic module and book
are known as the "Sound- and Light-enriched Electronic Board
Book." Written pictorial instructions on the pages of the book
direct the reader through the story. The book will be printed in
the U.S. and the electronic module will be produced in China.
The back of the finished electronic board book will state "Book
Printed in the U.S.A. Electronics Module Assembled in China."
ISSUE:
I. What is the proper tariff classification of the electronic
module under the HTSUSA?
II. Is a marking exemption available for the electronic module
in Part 134, Customs Regulations (19 CFR Part 134)?
LAW AND ANALYSIS:
I. Classification of the electronic module
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUSA, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes..." The competing headings
in this case are headings 8519, 8531, 8543 and 9503, HTSUSA. The
headings describe:
8519 Turntables, record players, cassette players and other
sound reproducing apparatus, not incorporating a sound
recording device...
8519.99.00 Other sound reproducing apparatus...Other
* * * * * * * * * * * *
8531 Electronic sound or visual signaling apparatus (for
example, bells, sirens, indicator panels, burglar or
fire alarms), other than those of heading 8512 or 8530;
parts thereof...
8531.80.00 Other apparatus
* * * * * * * * * * * *
8543 Electrical machines and apparatus, having
individual functions, not specified or
included elsewhere in this chapter; parts
thereof...
8543.80.90 Other machines and apparatus...Other
* * * * * * * * * * * *
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all
kinds; parts and accessories thereof...
9503.90.60 Other...Other...Other toys (except models),
not having a spring mechanism
The electronic module can arguably be classifiable as a toy
within heading 9503, HTSUSA, which describes other toys, models
and puzzles of all kinds. The Explanatory Note (EN) to Chapter
95 of the Harmonized Commodity Description and Coding System
(HCDCS), states that Chapter 95, HTSUSA, covers toys of all kinds
whether designed for the amusement of children or adults. HCDCS,
Vol. 4, p. 1585. The Explanatory Notes, although not
dispositive, are to be looked to for proper interpretation of the
HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). We are of
the opinion that the electronic module is not a toy but is a part
of the "Sound- and Light-enriched Electronic Board Book."
In determining whether an item is a part of an article, one
must look to the "nature, function, and purpose of an item in
relation to the article to which it is attached or designed to
serve...." Gallagher & Ascher Co., Inc. v. United States, 52
CCPA 11, 13, C.A.D. 849 (1964). An item may be a part of an
article even though the item is not necessary to the operation
of the article, provided that once the item is installed the
article cannot function properly without it. To meet this test,
the item must be dedicated for use upon the article. The court
in Gallagher found that auxiliary heaters dedicated for use in
Volkswagen automobiles were parts of automobiles. In Gallagher,
the court found the relevant considerations to be as follows:
[W]hether a given article constitutes a part of another
article depends upon the nature of the so-called part and,
we might add, to some degree on the function and purpose of
the so-called part in its relation to the article to which
it attaches or with which it is designed to serve.
The decided cases do not clearly establish any set rule
or principle for determination of what constitutes parts of
automobiles. The particular merchandise itself must be
considered in order to make a determination as to whether
the imported merchandise falls within the purview of the
parts provision herein involved....
An examination of these factors reveals that the electronic
module is an integral part of the "Sound- and Light-enriched
Electronic Board Book." The electronic module is not necessary
for the book to function as a child can read the book without the
attached electronic module. However, the book is specifically
designed to be used with the electronic module. The front cover
of the book is printed with the words "Press & Light Sounds
Mother Goose Rhymes" which indicates that the book is to be read
with the aid of the attached electronic module which produces
light and sounds to accompany the reading. The book and the
electronic module can function individually and apart from one
another but, as designed, they do not function properly until
they are permanently joined together. The electronic module is
dedicated to use with the "Press & Light Sounds" book. It is
not designed, marketed or sold to customers as a toy for the
amusement of children, but rather functions as an integral part
of the electronic board book. Accordingly, it is not
classifiable in heading 9503, HTSUSA.
Heading 8531, HTSUSA, provides for electronic sound or
visual signal apparatus. EN 85.31 states that this heading
covers all electrical apparatus used for signalling purposes,
whether using sound for the transmission of the signal (bells,
buzzers, hooters, etc.), or using visual indication (lamps,
flaps, illuminated numbers, etc.) and whether operated by hand
or automatically. This heading includes such items as electric
bells, buzzers, door chimes, horns, indicator panels used to call
personnel (room indicators, office indicators, elevators
indicators), fire alarms, and burglar alarms. HCDCS, Vol. 4, p.
1381, 1382. The electronic module does not satisfy the terms of
this heading as it does not belong to the class of any of the
previous named articles in EN 85.31. Accordingly, the electronic
module is not properly classifiable within this tariff provision.
Subheading 8519.99.00, HTSUSA, provides for "...other sound
reproducing apparatus, not incorporating a sound recording
device...Other sound reproducing apparatus...Other." EN 85.19
states that heading 8519, HTSUSA, covers all sound reproducing
apparatus, whatever the purpose for which it is intended (for
example, educational purposes, conferences, radio broadcasting,
cinema, dictating mail). HCDCS, Vol. 4, p. 1366.
We have previously held that reading trays which are
designed to function with books, as talking children's books, are
classified under subheading 8519.99.00, HTSUSA. See,
Headquarters Ruling Letter (HRL) 088044 dated April 4, 1991 and
HRL 086838 dated July 3, 1990. These reading trays contain a
microprocessor with a human voice simulator which also produces
sound effects. The reading trays decipher the information found
in a cartridge or in a circuit built into the book and synthesize
the digital speech signal into an audio signal which the reader
then can hear.
The electronic module is distinguishable from the above-
reference reading trays. The reading trays contain a read only
memory cartridge ("ROM"). The reading trays decipher the
information and produce an audio signal. However, the user of
the reading trays is able to control the reading tray by
selecting buttons on the tray such as proceed to next page, story
line, sounds, and repeat. The electronic module in question
uses fixed integrated circuits which are designed to perform the
same function over and over that of reproducing the sound of the
object chosen by the reader. The electronic module does not
satisfy the terms of this heading.
The electronic module is classified in subheading
8543.80.90, HTSUSA, as "Electrical machines and apparatus, having
individual functions, not specified or included elsewhere in this
chapter...." EN 85.43 states that heading 85.43 includes
"Electronic musical modules for incorporation in a wide variety
of utilitarian or other goods, e.g., wrist watches, cups and
greeting cards. These modules usually consist of an electronic
integrated circuit, a resistor, a loudspeaker and a mercury cell.
They contain fixed musical programmes." HCDCS, EN 85.43, Vol.
4, p. 1403.
II. Marking
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), provides that, unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or container) will permit, in such a manner as to
indicate to the ultimate purchaser in the U.S. the English name
of the country of origin of the article. Part 134, Customs
Regulations (19 CFR Part 134), implements the country of origin
marking requirements and exceptions of 19 U.S.C. 1304.
You requested an exception from marking the individual
electronic modules as the completed electronic board books will
state "Book Printed in the U.S.A. Electronics Module Assembled
in China." Since the electronic modules will be repackaged with
books to form electronic board books after importation into the
U.S., they are subject to the requirements of section 134.34,
Customs Regulations (19 CFR 134.34), which provides that an
exception from marking may be authorized in the discretion of the
district director under 19 CFR 134.32(d) for imported articles
which are to repacked after release from Customs custody under
the following conditions: (1) The containers in which the
articles are repacked will indicate the origin of the article to
an ultimate purchaser in the U.S.; (2) The importer arranges for
supervision of the marking of the containers. Therefore,
approval for marking the electronic board book instead of the
individual electronic module must be obtained from the district
director at the port of entry.
The submitted marking on the back of the completed
electronic board book which states "Book Printed in the U.S.A.
Electronics Module Assembled in China" is only acceptable if the
electronic module is eligible for entry under subheading
9802.00.80, HTSUSA. Otherwise, the completed electronic board
book should be marked "Book Printed in the U.S.A. Electronics
Module Made in China."
HOLDING:
The electronic module is properly classified under
subheading 8543.80.90, HTSUSA, as "Electrical machines and
apparatus, having individual functions, not specified or included
elsewhere in this chapter...."
Pursuant to 19 CFR 134.34, approval for marking the
electronic board book instead of the individual electronic module
must be obtained from the district director at the port of
entry.
Sincerely,
John Durant, Director
Commercial Rulings Division