CLA-2 RR:CR:GC 958944 JAS
Port Director
U.S. Customs Service
312 Fore Street
Portland, Maine 04112-4688
RE: Protest 2904-95-100282; Battery Packs; Battery Charger,
Parts and Accessories for Toys, Chapter 95, Note 3; Sets,
Essential Character, GRI 3(b), HQ 954061, HQ 955105;
Headings 8504, 9503; Mita Copystar America, Inc. v. U.S.;
Bauerhin Technologies Ltd. et al v. U.S.
Dear Port Director:
This is our decision on Protest 2904-95-100282, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of battery packs with and without
battery chargers. The subject merchandise was entered between
May 30 and July 4, 1995, and the entries liquidated between
September 15 and October 20, 1995. This protest was timely filed
on December 11, 1995.
FACTS:
The merchandise consists of several models of nickel-cadmium
battery packs and battery chargers packaged together in clam
shell packages, together with separately presented nickel cadmium
battery packs. Specifically, style 2989 6v battery pack, style
2990 6v battery pack/charger, and style 2997 9.6v battery
pack/charger, the latter two of which are referred to as "sets,"
are in issue here. The battery packs and chargers are said to be
dedicated for use with Tyco's radio controlled (R/C) toy
vehicles. For example, Tyco's 6v battery pack measuring 2 in. x
3 in., is said to be specially designed to clip into the bottom
of and power Tyco's R/C vehicles. It also clips into the plug-in
battery charger which measures 2 3/4 in. x 4 1/4 in. A sample
battery pack and charger, submitted in connection with this
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protest, are each color-coded and bear the designation "6.0V Jet
Turbo." It is claimed the battery packs are not readily capable
of alternative uses.
The battery packs with and without battery chargers were
entered under subheading 9503.80.00, HTSUS, which provides for
parts and accessories of toys and models, incorporating a motor.
The battery packs were classified in liquidation under subheading
8507.30.80, HTSUS, which provides for other nickel-cadmium
storage batteries. The battery packs with chargers packaged
together in clam shells were deemed to be "sets" for tariff
purposes and classified in subheading 8504.40.00 (now 40.70),
HTSUS, as other static converters.
The provisions under consideration are as follows:
8504 Electrical transformers, static converters (for example, rectifiers) and inductors; power supplies for automatic data processing machines or units thereof of heading 8471
* * * *
8507 Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof
* * * *
9503 Other toys; reduced-size ("scale") models and
similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
ISSUE:
Whether the battery packs, imported separately or packaged
together with battery chargers in clam shell packages, are
provided for in heading 9503, HTSUS, as parts and accessories of
toys.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
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according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
Counsel for the protestant contends that the battery packs,
imported separately or with battery chargers, are classifiable as
parts or accessories of toys, under heading 9503, HTSUS. In a
memorandum in support of this Protest, at a conference in our
office on September 18, 1996, and in letters dated, October 10,
1996, and June 11, 1997, counsel makes the following arguments:
the special design, manner of advertising and marketing of these
articles indicates the battery pack/charger sets are principally,
if not solely used with R/C toy vehicles; the R/C vehicles cannot
be used without the batteries which must be recharged
periodically; the battery packs are not interchangeable and none
can be substituted for any other; numerous administrative rulings
on similar merchandise support protestant's sole or principal use
argument; Additional U.S. Rule of Interpretation 1(c), HTSUS,
does not operate here as Chapter 95, Note 3, HTSUS, takes
precedence; and finally, the Court of International Trade's
discussion of the term "parts and accessories" in Mita Copystar
v. United States, Slip Op. 97-73 (Ct. Int'l Trade, decided June
4, 1997), supports the sole or principal use argument with
respect to the merchandise in issue here.
Chapter 95, Note 3, HTSUS, provides that "[s]ubject to note
1 above, parts and accessories which are suitable for use solely
or principally with articles of this chapter are to be classified
with those articles." Thus, if the battery packs and battery
packs with chargers are provided for in heading 9503, HTSUS, as
parts and accessories of toys of heading 9503, HTSUS, then those
articles, or either of them, must be classified in subheading
9503.80.00, HTSUS.
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We agree with protestant's assertion on pp. 5 and 6 of its
October 10, 1996, submission, that a nickel-cadmium battery pack
and charger, packaged together as indicated, constitutes goods
put up in sets for retail sale under GRI 3(b), HTSUS, and that
the battery imparts the essential character to the set. See HQ
954061, dated May 13, 1993, and HQ 955105, dated December 10,
1993. These rulings distinguished HQ 083672, dated May 16, 1989,
which classified nickel-cadmium batteries and module/adapters in
subheading 8504.40.00, HTSUS, as static converters (for example
rectifiers). Unlike the adapters considered in the cited
rulings, which were intended to recharge only the battery in the
set or a battery of like voltage, the adapter in HQ 083672 could
recharge all of the various sizes of consumer rechargeable nickel
cadmium batteries. Therefore, we agree that the battery packs
and battery pack/chargers in issue here are to be classified as
if consisting of the nickel-cadmium battery.
The question remains whether nickel cadmium batteries are
"parts and accessories" of heading 9503. Counsel maintains that
Mita Copystar America, Inc. v. United States, Slip Op. 97-73 (Ct.
Int'l Trade, decided June 4, 1997), supports its "parts and
accessories' claim. We disagree. The Court in Mita Copystar
upheld Customs classification of cartridges containing chemical
toner for photocopiers in heading 3707, HTSUS, as chemical
preparations for photographic uses, because under General Rule of
Interpretation (GRI) 3(b), HTSUS, the toner imparted the
essential character to the good. This decision represents a
rejection of plaintiff's claim under heading 9009, HTSUS, as
parts and accessories of photocopying apparatus. Therefore, any
discussion of "parts and accessories" in Mita Copystar must be
regarded as dictum, and is not controlling authority in this
case.
The evidence is inconclusive on whether the battery packs
and chargers in issue are accessories for toys of heading 9503.
The term "accessory" is not defined either in the text of the
HTSUS or in the ENs. Counsel has cited several administrative
rulings on the issue of "accessories" for purposes of Chapter 95,
Note 3, HTSUS. However, the status of such rulings as precedent
must be in the context of the particular merchandise they deal
with. None discussed battery packs or battery pack/chargers in
clam shell packages, nor are we aware of any judicial or
administrative decision in which nickel cadmium battery packs or
battery pack/rechargers have been held to be accessories for toys
of Chapter 95.
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On the issue of whether the battery packs and battery
chargers are "parts" for tariff purposes, articles that are
integral, constituent components of another article, without
which that article could not operate in its intended capacity,
have been held to be parts under the HTSUS. See Bauerhin
Technologies Ltd. et al v. United States, Slip Op. 95-206 (Ct.
Int'l Trade, decided December 26, 1995), aff'd. Slip Op. 96-1275
(Fed. Cir., decided April 2, 1997), and cited cases. In this
case, whether a R/C vehicle imported without a battery would
nevertheless be classified as a toy of heading 9503 is not
controlling. Nor, is it legally significant that a child might
play with and derive enjoyment from the vehicle, without the
battery, in the same way he would with a non self-propelled
vehicle. It is apparent that the battery packs, and the battery
pack/charger sets classified as if they were batteries, fit into
the specially configured compartment on the underside of a R/C
vehicle so that their respective electrical contacts mate. This
functional interrelationship permits the battery to interact
electrically with the mechanical components of a R/C vehicle by
rendering them operational. Hence the appellation "R/C." The
battery packs and battery pack/chargers are integral, constituent
components of a R/C vehicle, without which that vehicle cannot
operate in its intended capacity as a R/C vehicle.
It is important that any announced rule of law be applied
carefully, in the context of the particular facts under
consideration. In this case, the nickel cadmium batteries and
battery pack/charger sets are unique articles of commerce, the
tariff status of which must be evaluated in the context of their
singular relationship with a R/C vehicle. Based on the
particular facts here, it is Customs position that the
batteries and battery pack/charger sets in this case are
integral, constituent and component parts necessary to the
completion and proper operation of the R/C vehicles with which
they are principally, if not solely, used.
HOLDING:
Under the authority of GRI 1, the nickel-cadmium battery
packs imported separately, and the nickel-cadmium battery packs
and chargers imported in clam shell packages as sets, are
provided for in heading 9503. They are classifiable in
subheading 9503.80.00, HTSUS.
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The protest should be ALLOWED. In accordance with section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division