CLA-2 RR:TC:MM 959403 MMC
Mr. Scott E. Rosenow
Stein Shostack Shostack & O' Hara
1620 L Street , N.W., Suite 807
Washington D.C. 20036-5605
RE: Flashlight, whistle, I.D. badge and "dog tag" packaged
together for retail sale; toy set; ENs 95; HRLs 950700, 083279;
NYRL 868597
Dear Mr. Rosenow:
This is in response to your letter of May 17, 1996, to the
our office in New York, on behalf of the Imperial Toy
Corporation, requesting the proper classification of 3 different
items you identify as No. 7507A-"Talking Action Police
Flashlight Play Set", No. 7507B- "Talking Fire Fighter
Flashlight Play Set" and No. 7507C-"Talking Red Alert Space Light
Play Set" under the Harmonized Tariff Schedule of the United
States (HTS). Your letter, together with samples, was forwarded
to this office for response.
FACTS:
You identify the subject articles as No. 7507A-"Talking
Action Police Flashlight Play Set", No. 7507B- "Talking Fire
Fighter Flashlight Play Set" and No. 7507C-"Talking Red Alert
Space Light Play Set". Each contains a flashlight with an
electronic device which produces sound, a plastic whistle, dog
tags and a preprinted "I.D. card" which must be cut from the back
of the packaging.
The flashlights are made of a thin plastic shell which
contains a compartment for batteries, two on/off switches (one
for light and one for sound) and secures a wrist strap. When the
sound switch is activated, a voice mechanism chip emits a shout
of either "stop police", "to the rescue" or "red alert" as well
as various alarm and siren sounds. When the other switch is
turned on it activates a bulb which can illuminate a dark room.
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 flashlight, whistle, I.D. badge and "dog tag"
packaged together for retail sale are classifiable, as a whole,
as GRI 3 "sets", or in subheading 9503.70 as other toys, put up
in sets or outfits, or separately, in other various headings
applicable to their individual components
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. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTS by offering guidance in
understanding the scope of the headings and GRIs.
The merchandise consists of an I.D. badge from the back
carton portion of the packaging, dog tags, a plastic whistle, and
a flashlight with sound component, packaged together for retail
sale. The dog tags have a limited use and are described by
subheading 9503.90.0030, HTS. New York Ruling Letter (NYRL)
818422 dated February 20, 1996, clearly established that the
subject talking flashlight is classifiable as a flashlight, not a
toy, under subheading 8513.10.20, HTS. The whistle is described,
eo nomine, under subheading 9208.90.00, HTS, as a whistle.
You suggest that all the merchandise has been converted to
toys. The ENs to 9503 provide that, "collections of articles,
the individual items of which if presented separately would be
classified in other headings in the Nomenclature, are classified
in this Chapter when they are put up in a form clearly indicating
their use as toys (e.g., instructional toys such as chemistry,
sewing, etc., sets)." Customs, in general, classifies
merchandise fitting this description in 9503.70, as toys put up
in sets or outfits.
The recently added "Subheading Explanatory Note to
Subheading 9503.70" states in pertinent part that, for the
purpose of the subheading, "[s]ets" are two or more different
types of articles (principally for amusement), put up in the same
packing for retail sale without repacking. Simple accessories or
objects of minor importance intended to facilitate the use of the
articles may also be included."
In Headquarters Ruling Letter (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. In
that decision, Customs stressed that the criteria applicable to a
GRI 3 set put up for retail sale are not applicable to toys put
up in sets. 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, but in the case of GRI 3 sets, the articles must meet
a particular need or carry out a specific activity.
When determining which articles qualify as toys put up in
sets, that ruling notes, in general, that:
[Subheading]...9503.70 encompasses a combination of two or
more mutually complementary complete articles in a retail
package, the essential character of which is established by
the combination of the articles and not by any individual
article in the combination. Customs will not classify as a
toy set any retail package sold to children which merely
contains more than one item. Instead, it is our position
that merchandise classified in 9503.70 should contain
complementary articles generally used together as a
combination, and not individually, to provide amusement
(e.g., some nexus exists between the components which work
together to amuse). However, not all the articles are
required to be used at the same time to be considered toys
put up in sets. In addition, no individual article should
predominate over any in the combination.
This combination of articles fails on several levels to meet the
subheading 9503.70, HTS, toy set requirements.
As is the case with the flashlight and whistle, when a
article has both the potential for amusement and utility the
question of determining whether it is converted to a toy 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 flashlight and whistle 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 and the whistle was audible in
a large room. While providing some amusement clearly the
amusement is incidental to the utilitarian purpose. Moreover,
neither the flashlight or whistle's use is limited in any way.
Finally, the flashlight is far more valuable, much larger in bulk
weight, and serves a dual function of lighting as well as
providing sound. It is clearly the dominant article of the
grouping.
We note that the fact that the flashlights have an
electronic device which produces noise and phrases does not
convert them 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.
You cite New York Ruling Letter (NYRL) 868597, issued
December 4, 1991, in which a "fireman play set" containing a
plastic fire axe, flashlight, wallet with I.D. card, badge,
whistle and binoculars was classified as toys put up in sets.
As the evidence presented for that ruling pertaining to the
composition and nature of the various components as well as their
relationship to each other is not obtainable, we do not find the
ruling controlling.
Finally, you cite HRL 083279, issued February 20, 1990, in
which Customs held that a "G.I. Joe Field Belt" which consisted
of a flashlight, whistle, compass, shovel, canteen, and plastic
knife all of which were packaged and sold as a set and marketed
as toys were held to be toy sets. Customs stated that each of the
components were either clearly toys, or functional articles with
a limited use. Neither is the case with these components. With
the exception of the dog tags, none of the components have been
determined to be toys and the functional components, the
flashlight and whistle do not have a limited use. Furthermore,
the flashlight clearly is the dominant component of the grouping.
Accordingly, the articles are not classifiable, pursuant to GRI
1, as toy sets under subheading 9503.70, HTS.
When goods cannot be classified by applying GRI 1, and if
the headings and legal notes do not otherwise require, the
remaining GRI's are applied. GRI 3(b) provides, in pertinent
part, that:
[G]oods put up in sets for retail sale, which cannot be
classified by reference to 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character, insofar as this criterion is
applicable.
Classifying the subject merchandise first requires determining
whether the goods constitute a set. If so, then it must be
determined which component imparts the essential character to the
set. The ENs state, in pertinent part, that a set must
"[c]onsist of products or articles put up together to meet a
particular need or carry out a specific activity...." Note X to
Rule 3(b). The subject components include a wide variety of
articles with varying and disparate purposes; there is no one
particular need or specific activity represented by this
collection of articles. One article does not in any way enhance
the use, play value, functioning or any other aspect of the
other. Moreover, we see no way that associating a functioning
flashlight with other unrelated articles could transform the
resulting combination into a specific activity set classifiable
in the toy heading.
Since a set does not exist in this instance, these items
must be classified on an individual basis. The flashlights are
classifiable under subheading 8513.10.20, HTS, as flashlights,
the whistles are classifiable under subheading 9208.90.00, HTS,
as whistles and the dog tags with string under subheading
9503.90.0030, HTS, as other toys.
HOLDING:
The flashlights are classifiable under subheading
8513.10.20, HTS, with a column on duty rate of 17.5 percent ad
valorem.
The whistles are classifiable under subheading 9208.90.00,
HTS, with a column one duty rate of 5. 3 percent ad valorem.
The dog tags with string under subheading 9503.90.0030, HTS,
with a column one duty rate of free.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division