CLA-2 R:C:M 958302 LTO
Ms. Sandra Swanson
Alrod International, Inc.
880 Stanton Road
Burlingame, California 94010
RE: "Yak Bak" sound recording device; NY 804205 revoked; NY
809199; HQs 087599, 956261; Section XVI, note 1(p); heading
9503; EN 85.20; General EN to chapter 95
Dear Ms. Swanson:
This is in reference to NY 804205, issued to you, on behalf
of Yes! Entertainment Corp., on December 13, 1994, which
concerned the classification of the "Yak Bak" sound recording
device under the Harmonized Tariff Schedule of the United States
(HTSUS). A further review of the issue has caused us to
reconsider this ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186
(1993), notice of the proposed revocation of NY 804205 was
published September 6, 1995, in the Customs Bulletin, Volume 29,
Number 36.
FACTS:
The article in question is called the "Yak Bak," which is a
small recording device
which fits in the palm of the user's hand. The user talks into a
speaker/microphone while pressing down a button located on the
device to record a six second message. Another button activates
playback of the recorded message.
- 2 -
ISSUE:
Whether the "Yak Bak" is classifiable as a toy under heading
9503, HTSUS, or as sound recording and reproducing apparatus
under heading 8520, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part, that "for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes . . . ."
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding, and therefore
not dispositive, the ENs provide a commentary on the scope of
each heading of the Harmonized System, and are generally
indicative of the proper interpretation of these headings. See
T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The headings under consideration are as follows:
8520 Magnetic tape recorders and other sound recording
apparatus,
whether or not incorporating a sound reproducing
device
9503 Other toys . . .
In NY 804205, dated December 13, 1994, the "Yak Bak" was
held to be classifiable under subheading 9503.90.60 (now,
9503.90.00), HTSUS, which provides for other toys (except
models), not having a spring mechanism. Note 1(p) to section
XVI, HTSUS, states that the section, which includes heading 8520,
HTSUS, does not include articles of chapter 95, HTSUS. Thus, if
the "Yak Bak" is classifiable under heading 9503, HTSUS, it
cannot be classified under heading 8520, HTSUS.
With regard to heading 9503, HTSUS, the ENs to Chapter 95,
pg. 1585, indicate that "this chapter covers toys of all kinds
whether designed for amusement of children or adults." It has
been Customs position that the amusement requirement means that
toys should be designed and used principally for amusement. See
HQ 956261, dated May 26, 1994; Additional U.S. Rule of
Interpretation 1(a), HTSUS. In our opinion, the "Yak Bak"
functions in a manner similar to other hand held, sound
recording/ reproducing apparatus that are not marketed to
children (i.e., similar operating capacities/limited recording
times). Moreover, the "Yak Bak" does not provide the
manipulative play value or frivolous entertainment characteristic
of toys. Further, any - 3 -
amusement derived from the "Yak Bak" is incidental to the
device's utilitarian purpose. See HQ 087599, dated March 5,
1991. Thus, the device is not "designed and used principally for
amusement," and is not classifiable under heading 9503, HTSUS.
With regard to heading 8520, HTSUS, EN 85.20, pg. 1368,
states that the heading "covers all sound recording apparatus,
whatever the purpose for which it is intended . . . [and]
includes sound recording apparatus, incorporating a sound
reproducing device [emphasis added]." The "Yak Bak," though not
a sophisticated device, functions as sound recording and
reproducing apparatus. Accordingly, the "Yak Bak" is
classifiable under heading 8520, HTSUS, specifically under
subheading 8520.90.00, HTSUS. See NY 809199, dated May 3, 1995
(wherein "Pocketalkers," similar voice recording and playback
devices, were held to be classifiable under subheading
8520.90.00, HTSUS).
NY 804205, dated December 13, 1994, is revoked.
HOLDING:
The "Yak Bak" is classifiable under subheading 8520.90.00,
HTSUS, which provides for other sound recording apparatus,
whether or not incorporating a sound
reproducing device. The corresponding rate of duty for articles
of this subheading is 3.1% ad valorem.
In accordance with 19 U.S.C. 1625(c)(1), this ruling will
become effective 60 days after publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to 19
U.S.C. 1625(c)(1) does not constitute a change of practice or
position in accordance with section 177.10(c)(1), Customs
Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Tariff Classification Appeals Division