CLA-2 RR:TC:FC 959043 MMC
Ms. Debra A. Belanger
Stein Shostack Shostack & O' Hara
515 South Figueroa Street, Suite 1200
Los Angeles, California 90071-3329
RE: "Talking"Flashlights; Reconsideration of NYRL 818422; EN
95.03; Amico, Inc. v. U.S.; HRLs 083279, 950700; NYRL 868597
Dear Ms. Belanger:
This is in response to your letter of March 14, 1996,
requesting reconsideration of New York Ruling Letter (NYRL)
818422 dated February 20, 1996. This ruling classified talking
flashlights under subheading 8513.10.20 of the 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. You state that the flashlights
are properly classified under subheading 9503.90.0030, HTS, as
other toys (except models), not having a spring mechanism.
FACTS:
The subject articles are flashlights with an electronic sound
device. They are identified as follows:
Model Numbers Voices and Sound Effects
7357 (Trick or Treat Flashlight) "Trick or Treat," with
cat screech and wolf howl
7507a (Police Flashlight) "Stop, police, I got
you," with a siren
7507b (Firefighter Flashlight) "To the rescue, on the
way," with fire engine sound.
7507c (Space Flashlight) "Red alert, laser fire,
red alert, Power beam
on," with laser sounds.
The flashlights are housed in a 7" long thin plastic shell
which contains a compartment for batteries. On the outside of
the shell are two on/off switches (one for light and one for
sound) and a wrist strap. When the sound switch is activated, a
voice mechanism chip shouts one of the above phrases. The other
switch activates a bulb which can illuminate a dark room. The
bulb's wattage was not provided. The subject articles are
packaged in vibrant, action-oriented colors with drawings of
police, fire fighter or space patrol action scenes. They are
sold in toy stores or the toy section of department stores.
ISSUE:
Whether the talking flashlights are classifiable as
flashlights or other toys
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTS) is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
section or chapter notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI's may
then be applied.
You state that the talking flashlights are converted to toys
because they are clearly designed and marketed for the amusement
of children. Additionally, you claim that talking flashlights
are limited in their use. We disagree.
Heading 9503, HTS, applies to "other toys," i.e., all toys
not specifically provided for in the other headings of chapter
95. Although the term "toy" is not defined in the tariff, the EN
to chapter 95 indicates that a toy is an article designed for the
amusement of children or adults. Heading 9503, HTS, provides for
"Other toys...and accessories thereof," i.e., all toys not
specifically provided for in the other headings of chapter 95.
Although the term "toy" is not defined in the tariff, the ENs to
chapter 95 indicate that a toy is an article designed for the
amusement of children or adults. The ENs to heading 9503
indicate that certain toys (e.g., electric irons, sewing
machines, musical instruments, etc.) may be capable of a limited
"use," but they are generally distinguishable by their size and
limited capacity from real sewing machines, etc.
In support of your limited use argument you cite Amico, Inc.
v. U.S., 71 Cust. Ct. 182 (1978), (hereinafter Amico) . In
Amico a flashlight-like device which projected the image of a
clown onto a wall was classified as a toy. The Amico device
varies significantly from the present flashlights. The "clown
flashlights," of Amico were used to project a clown-like image on
the surface of a darkened area. In contrast, the subject
flashlights are used as lamps to illuminate a darkened area.
Additionally, you cite Headquarters Ruling Letter (HRL)
083279 dated February 20, 1990, and New York Ruling Letter
(NYRL) 868597 dated December 14, 1991, both of which classified
sets of various articles, each of which contained a flashlight as
one of the components, as toy sets. In HRL 950700, issued August
25, 1993, Customs explained in which cases certain articles
normally classified elsewhere in the HTS may fall within 9503.70
as toys put up in sets, based on the manner they were put up.
Articles which normally would be classified elsewhere in the HTS
may be classified as toys when put up together so that they are
designed and used principally for amusement.
In both HRL 083279 and NYRL 868597, the flashlight in each
was converted to a toy because it was simply one of the
components of a set used to complete the theme of playing the
role of a policeman, fireman or soldier. It was the flashlight's
combination with other articles which converted it to a toy.
Therefore, the cases have no bearing on the classification of the
subject flashlights.
The flashlight's possible potential for amusement does not
outweigh its utilitarian function. When a article has both the
potential for amusement and utility the question becomes one of
determining whether the amusement is incidental to the
utilitarian purpose, or the utility purposes incidental to the
amusement (See: Ideal Toy Corp. v. United States, 78 Cust. Ct.
28, C.D. 4688 (1977)). The flashlights are fully functioning
articles which have not only the possibility but more likely the
probability of being used as such. When tested, the flashlight
lit up a darkened room. Moreover, the "trick or treat"
flashlight is designed to be used on Halloween night to light a
child's path during trick or treating. Additionally, the subject
flashlights's size and construction are consistent with other
flashlights and no component of the flashlight limits its
illuminating function.
We note that the electronic devices which produce noise and
phrases do not convert the flashlights to toys. In 1989,
anticipating classification problems with respect to merchandise
containing such musical mechanisms, the Customs Cooperation
Council (now the World Customs Organization or WCO) provided
guidance which Customs has long followed. With electronic chips
having become relatively inexpensive and simple to install in a
wide variety of products, the CCC suggested that merchandise
containing battery-operated chips with speakers, should be
classified in the same headings as the corresponding articles not
incorporating such modules.
The flashlights are not put up in a form clearly indicating
their use as toys. This is so even though they are put up in
colorful retail packaging suggesting that amusing articles are to
be found within. It is, further, likely that the articles would
be sold in toy stores alongside toys because of their appeal to
children. These factors are not enough, however, to transform
articles that are not toys into toys for tariff purposes.
The flashlights are classifiable under subheading
8513.10.20, HTS, which provides, in pertinent part, for portable
electric lamps designed to function by their own source of
energy...lamps: flashlights.
HOLDING:
The flashlights are classifiable under subheading
8513.10.20, HTS, with a column on duty rate of 17.5 percent ad
valorem.
NYRL 818422 is AFFIRMED.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division