CLA-2 RR:TC:FC 958751 ALS
Paul S. Anderson, Esq.
Sonnenberg & Anderson
200 South Wacker Dr.
33rd Floor
Chicago, IL 60606
RE: Revocation of New York Ruling Letter (NYRL) 808911, Dated April 25, 1995, Regarding Talkboy F/X Plus Recording Pen
Dear Mr. Anderson:
In NYRL 808911 Customs held that the subject article was
classifiable as a ball point pen. We have reviewed that ruling
pursuant to your request for reconsideration and believe that it
should be revoked. Pursuant to section 625, Tariff Act of 1930
(19 U.S.C. 1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
NYRL 808911 was published November 13, 1996, in the Customs
Bulletin, Volume 30, Number 45/46.
FACTS:
The Talkboy F/X Plus Recording Pen is an article shaped like
a pen. It is 6 inches in length with a barrel diameter of
approximately 5/8 inch. It has a clip which permits it to be
clipped to a shirt pocket and it has the writing capability of a
pen. In addition, it has various electronic capabilities. These
include the ability to record and play messages, to alter the
recorded sound by the use of a built-in pitch modulation switch
that makes the user's voice higher or lower than normal, a LED - 2 -
(light emitting diode) to show when a message is being recorded,
and buttons which permit playback of a message(s) or their
erasing. It has a 12 second recording capability. The pen also
has a series of 6 buttons which emit various sounds when pressed,
e.g., barking and ringing.
ISSUE:
What is the classification of the subject device which has
the capabilities of recording and playing back sounds, producing
sounds and of being used as a writing instrument?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In considering the classification of this article, we note
that NYRL 808911 placed it in the provision for pens because of
its writing capability. It has long been our practice to
classify utilitarian objects with toy-like motifs or play
features as the functional object they are. Several factors,
however, caused us some concern as to whether this article would
be considered a pen in the marketplace. The article is rather
thick for a pen intended to be used by children ages 7 and up; we
had some question as to whether a young child could write with
the pen. Since thick pencils, known as primary pencils, are
designed for use by young children just learning to write, we
concluded that the thickness of the article would not keep it
from being considered a pen. In examining the ink reservoir of
the pen, we noted that it was merely 2" long rather than 4", the
length of a normal ball point pen ink refill. Although a spare
refill was provided with the article, we were concerned as to
whether a refill of such size was available in the marketplace.
We were unable to confirm such availability. We, therefore, were
concerned as to whether this article might be purchased for its
writing capabilities at the stated retail price of $20, if
appropriate refills were not available.
- 3 -
Counsel has advised us that:
"...replacement cartridges are not available in retail stores, and (company name) does not promote retail sale of
the cartridges. Therefore, a purchase of the Talkboy F/X Plus must take the initiative and contact (company name)
should he or she wish to purchase a replacement cartridge.
Only under those circumstances will (company) provide
replacement cartridges, at cost plus handling charges. Over
the course of one year, (company's) statistics indicate that
the amount of pen cartridge replacement requests is negligible, with only about (minimal number) cartridges sold, while over (a very large quantity of) Talkboy F/X Plus
units were sold during this same period."
Based on the above and the fact that the article has other
capabilities, we have examined those other capabilities. We note
that the article has the capability of recording and playing back
messages of 12 seconds in length, which is comparable to
electronic memorandum devices sold for commercial purposes.
While the sound quality of the article may not compare to that of
relatively high priced electronic memorandum devices, we have
confirmed, by empirical observation, that such sound quality is
comparable to available commercial units in a price range equal
to and somewhat higher than the instant article. In Headquarters
Ruling Letter (HRL) 958302, dated October 17, 1995, we held that
a device with such capabilities was a sound recording apparatus
classifiable in subheading 8520.90.0080, HTSUSA.
In further examining the features of the Talkboy F/X Plus,
we found that while it maintains the utilitarian capabilities of
an electronic memorandum device, it has the added capability of
making 6 different sounds. This capability makes it similar to
certain sound producing devices marketed for amusement purposes,
some are marketed to adults, which have no utilitarian purpose.
In HRL 081831, dated May 17, 1989, HRL 086838, dated July 3,
1990, HRL 950236, dated June 29, 1992 and HRL 952042, dated
September 23, 1992, we held that the presence of a musical or
sound producing device should not control the classification of
articles that would normally be classified elsewhere. These
items were utilitarian articles with added noise making
capabilities ancillary to their main utilitarian function. The
instant article maintains a similar relationship but also permits
the user of the article to utilize such noise making capabilities - 4 -
independent of or with its utilitarian function. The Talkboy F/X
Plus packaging indicates that the article is intended to children
7 and up. The article was used in a comedy film prior to its
initial commercial marketing. The F/X in the title of the
article is apparently related to the entertainment industry
acronym for "special effects." When considering the sound
recording/playback and noise making capabilities of the instant
article, we believe that the noise making capability, as between
the two capabilities, is the focus of the article. That
capability is not ancillary, as in the aforementioned rulings, to
the primary purposes of those articles.
Another factor entering into this consideration, as
previously referenced, is the writing capability of the article
and the fact that merchandise with a functional component is
normally classified based on that component. While the subject
article has a writing capability, we do not believe that it
should be considered a functional pen. In this regard, we note
the limited size of the pen refill, the unavailability of those
refills in a normal commercial marketplace, and the fact that the
refills are only available from the importer with some difficulty
and at an expense apparently exceeding what a purchaser might
expect to pay for a ball point pen refill at a retail store.
Our conclusion as to the functionality of the "pen" is
limited to the subject article, as herein described. If, for
example, the article featured a refill similar to those with
which a ball point pen is normally marketed or if refills of the
size noted were available in the normal marketplace, whether
supplied by the importer or another supplier, the question of
functionality would have to be reexamined.
Based on the noise making focus of the article and the above
conclusion as to functionality of the pen component, we have
concluded that the Talkboy F/X Plus should be classified as a
toy. In this regard, we have concluded that it provides the
manipulative play value or frivolous entertainment
characteristics of toys because of its noise making features, the
primary focus of the item. The amusement value of this article
is more than an incidental component of the article.
- 5 -
HOLDING:
The Talkboy F/X Plus is classifiable in subheading
9503.90.0030, HTSUSA, which provides for Other toys;...Other,
Other, Other toys (except models), not having a spring mechanism.
Merchandise so classified is subject to a free general rate of
duty.
NYRL 808911 is hereby revoked. In accordance with section
625, this ruling will become effective 60 days after its
publication in the Customs Bulletin. Publication of rulings or
decisions pursuant to section 625 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