CLA-2 RR:TC:FC 959601 RC
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
New York, New York 10048
RE: Request for Reconsideration New York Ruling Letter (NYRL)
A82245; "Spin Pops"
Dear Mr. Simon:
This is in response to your letter of August 2, 1996, on
behalf of your client CAP Toys, Inc., requesting reconsideration
of NYRL A82245, dated April 25, 1996, issued to your client,
concerning the classification of various "Spin Pops." We have
also taken into consideration the information you presented to
Headquarters personnel on November 20, 1996.
FACTS:
The "Spin Pop" articles consist of a handle containing a
battery-powered motor (output of .75 to 1.50 watts ("W")) and a
lollypop. When depressed, a button on the side of the handle
activates the motor causing the lollypop to spin. The samples
feature the head and torso of a given three-dimensional cartoon
character. Each character's head has a small hole designed to
accommodate a given lollypop stick. The four characters are as
follows: "Batman" (Item 4500); White "Mighty Morphin Power"
Ranger (Item 4505); "Dolly Lolly" -- a ballerina (Item 4510); and
"Taz" -- the Tasmanian Devil (Item 4515). For the first two
items, only the lollypop spins when the handle button is
depressed. For the latter two items, the character itself, as
well as the lollypop, spins when the handle button is depressed.
The "Spin Pop" articles measure approximately six inches in
height, one inch in width, and one inch in depth. On the bottom
of the handle, a panel may be opened to remove and replace the
"AA" size battery. The handles are made in China. The lollypops
are made in the United States and exported for packaging with the
other items in China.
In NYRL A82245, Customs classified the Spin Pops in
subheading 8501.10.4060, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the provision for other electric
motors, of an output not exceeding 37.5 W of under 18.65 W,
other, DC, other, dutiable at 5.7 percent ad valorem; the
lollypops in subheading 1704.90.3505, HTSUSA, the provision for
other sugar confectionery, dutiable at 6.5 percent ad valorem.
As items of US origin, the lollypops were considered for
preferential duty treatment under heading 9802.00.8065, HTSUSA.
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),
notice of the proposed modification of NYRL A82245 was published
on February 5, 1997, in the Customs Bulletin, Volume 31, Number
6.
ISSUE:
Whether the "Spin Pops" are properly classifiable in heading
8501, HTSUS, as electric motors or in heading 9503, HTSUS, as
toys with motors.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRIs). 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 GRIs 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
The instant articles, composite goods consisting of
different components, cannot be classified by reference to GRI 1
because the components are prima facie classifiable in different
headings. The lollypops are classifiable in heading 1704,
HTSUSA, the provision for other sugar confectionery. The
handles, depending on the design, are classifiable in Chapter 85
or 95, HTSUSA, the provision for other motors or toys with
motors, respectively.
In pertinent part, GRI 2(b) states that:
[t]he classification of goods consisting of more than
one material or substance shall be according to the
principles of rule 3.
GRI 3(a) directs that the headings are regarded as equally
specific when each of the separate headings refers to only part
of the composite article. Therefore, to determine under which
provision the article will be classified, we look to GRI 3(b),
which states that: [m]ixtures, composite goods consisting of
different materials or made up of different components, and goods
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.
Explanatory Note VIII to GRI 3(b) provides the following
guidance concerning the essential character determination:
The factor which determines essential character will
vary as between different kinds of goods. It may, for
example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the
use of the goods.
Explanatory Note IX to GRI 3(b) states in pertinent part
that:
For the purposes of this Rule, composite goods made up
of different components shall be taken to mean not only
those in which the components are attached to each
other to form a practically inseparable whole but also
those with separable components, provided these
components are adapted one to the other and are
mutually complementary and that together they form a
whole which would not normally be offered for sale in
separate parts.
Here, the different Spin Pop components, adapted one to the
other, are mutually complementary. Together they form a whole
which would not normally be offered for sale in separate parts.
While the lollypops are normally sold separately, the lollypop
spinners are never sold separately.
Next, to classify the Spin Pops, we must decide which
component imparts the essential character. We note that when
activated, the motors of the "White Ranger" and "Batman" items
spin only the lollypops, not their three-dimensional cartoon
characters. In essence, these "Spin Pops" are similar to those
ruled upon in Headquarters Ruling Letter (HRL) 955233 (April 14,
1994), issued to you on behalf of your client, CAP Toys, Inc.
There, the "Spin Pops" also consisted of handles designed to spin
lollypops. However, those "Spin Pops," imported without
lollypops, lacked the three-dimensional cartoon character motifs.
Nevertheless, we find that the "White Ranger" and "Batman"
cartoon characters are purely decorative, in no way tied to
activation of the motors. Like the Spin Pops in HRL 955233, the
motor component for the "White Ranger" and "Batman" items
contributes most to the finished products, in terms of bulk,
weight, and value. The motor imparts the essential character for
these items. Consequently, the "White Ranger" and "Batman" items
are classifiable in Chapter 85.
In contrast, we note that the "Dolly Lolly" and "Taz"
cartoon characters spin when the motors are activated, along with
the lollypops. This animation of the three-dimensional cartoon
characters gives the items separate play value tied directly to
activation of the motors. A child activates the motor to play
with the moving characters, even without a lollypop. For the
"Dolly Lolly" and "Taz" items, the nature of the animated cartoon
characters, as motorized toys, contributes most to the finished
products, in terms of bulk, weight, and value. The animated
cartoon characters impart the essential character of the "Dolly
Lolly" and "Taz" items. Consequently, the "Dolly Lolly" and
"Taz" items are classifiable in Chapter 95.
HOLDING:
The "White Ranger" and "Batman" items are classifiable in
subheading 8501.10.4060, HTSUSA, the provision for "Electric
motors . . . : Motors of an output not exceeding 37.5 W: of
under 18.65 W: Other, DC: Other," dutiable at 5.7 percent ad
valorem.
The "Dolly Lolly" and "Taz" items are classifiable in
subheading 9503.80.0010, HTSUSA, as "Other toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; parts and accessories thereof: Other toys
and models, incorporating a motor, and parts and accessories
thereof, Toys (except models): Incorporating an electric motor."
The applicable rate of duty is free.
NYRL A82245 is modified.
In accordance with 19 U.S.C. 1625, this ruling will become
effective 60 days from its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C. 1625
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