CLA-2-85:RR:NC:GI: 227 818422
Mr. James F. O'Hara
Stein, Shostak, Shostak & O'Hara
515 So. Figueroa St., Ste. 1200
Los Angeles, CA 90071-3329
RE: The tariff classification of flashlights from China.
Dear Mr. O'Hara:
In your letter dated January 15, 1996, on behalf of Imperial Toy Corporation, you requested a tariff classification ruling.
The merchandise at issue consists of portable, cylindrical-shape plastic, battery-operated "talking flashlights" which measure approximately 7 inches long. Each of these articles possesses an on/off switch mechanism that activates the torch light and a button-like device that, when pressed, emits specific voices and sounds characteristic of the following models in question:
Model Numbers Voices and Sound Effects
"Trick or Treat," (Trick or Treat Flashlight) accompanied by
Halloween sounds.
7507a "Stop, police, I got you," (Police Flashlight) accompanied by
police siren.
7507b "To the rescue, on the way,"(Firefighter Flashlight) accompanied by sound of a fire engine.
7507c "Red alert, laser fire, red (Space Flashlight) alert, Power beam on," accompanied by sound of lasers.
You claim that the subject merchandise should be properly classified under subheading 9503.90.0030, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys (except models), not having a spring mechanism.
You support this assertion in stating that even though these items can function as a flashlight in a flimsy manner, it is apparent that the voice and noise emitted by each model is intended to allow and enhance a child's ability to play the character and role of the person suggested (a child "trick or treating," a policeman, a fireman and an astronaut). Moreover, you state that each model, together with its color and construction, strongly suggest that this merchandise is intended primarily for amusement purposes and will be promoted and marketed as toys (noting HRL 083279 and New York Ruling 868597 dated February 20, 1990 and December 4, 1991 respectively as well as Amico, Inc., v. United States, 71 Cust. Ct. 182, C.D. 4494).
In the Sanyo Electric court decision (1980), flashlights were defined as small battery-operated portable electric lights, normally held in the hand by the housing itself, whose primary function is to project a beam of light. Despite the fact that you refer to this merchandise as flimsy flashlights which are principally designed, noting its above features, for the amusement of children, these lamps, based on their design and use, nevertheless meet the definition of a flashlight with the secondary features of emitting voices and sounds.
In regard to the above-cited rulings (HRL 083279 and NYR 868597), it is noted that they cover the classification of toys in sets in which the flashlight was simply one of the components of that set, noting that the flashlight was used to complete the theme of playing the role of a policeman, fireman or soldier. The articles, when combined, were clearly put up in a form indicating their use as toys. Whereas the instant merchandise in question bears no similarity to the rulings cited as they are imported in bulk and are not part of a set.
In reference to C.D. 4494, the articles in that decision, the "clown flashlights," did not function as lamps but utilized their light to project a clown-like image on the surface of a darkened area. In contrast, the instant lamps, possessing the aforementioned ancillary features, meet the above definition of a flashlight based on their design and function.
Further, it should be noted that the "talking flashlights" do not have a "limited" functional use. The incorporation of a sound device, which produces several words of alert accompanied by a siren, does not transform these articles into toys. The electronic aspect simply serves to increase the products' commercial appeal.
The applicable subheading for the "talking flashlights," model numbers 7357, 7507a, 7507b and 7507c, will be 8513.10.2000, Harmonized Tariff Schedule of the United States (HTS), which provides for portable electric lamps designed to function by their own source of energy...lamps: flashlights. The rate of duty will be 20 percent ad valorem.
This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling letter or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist George Kalkines at 212-466-5794.
Sincerely,
Roger J. Silvestri
Director,
National Commodity
Specialist Division