CLA-2 RR:TC:FC 959784 MMC
Port Director of Customs
55 Erieview Plaza, 6th Floor
Cleveland, OH 44114
RE: Protest No.4101-96-100250; White Ranger Spin Pop; HRLs
955233, 952500; NYRL A82245
Dear Sir:
The following is our response to the application for further
review of protest 4101-96-100288, concerning your decision to
classify an article identified as a White Ranger Spin Pop, under
the Harmonized Tariff Schedule of the United States (HTS). A
sample of the subject articles were submitted for our review.
FACTS:
The article is described as a White Ranger Spin Pop. It
consists of a lollipop, a motor with accompanying wiring and a
1.5 volt replaceable battery. The motor is housed in a plastic
casing which is molded in the shape of a "White Ranger." At the
top of the plastic casing is a small hole where the lollipop
stick is inserted. On the bottom of the handle is a panel which
can be opened to remove and replace the "AA" size battery. A
button on the side of the handle must be depressed to activate
the motor which spins the lollipop. The motor component measures
3«" high, 1" wide and 1" deep.
Pursuant to New York Ruling Letter (NYRL) A82245 dated April
25, 1996, protestant was directed to enter the spin pops under
subheadings 8501.10.4060, as electric motors and generators
(excluding generating sets):motors of an output not exceeding
37.5 W: of under 18.65 W: other: DC: other and subheading
1704.90.3505 which provides for sugar confectionery: other:
other: other. Protestant asserts that the White Ranger Spin
Pops are classifiable under subheading 9503.49.0020, which
provides for other toys; reduced-size ("scale") models and
similar recreational models, working or not; puzzles of all
kinds; and accessories thereof: other toys and models,
incorporating a motor and parts and accessories thereof: toys
(except models):other. The entries, all made November, 1995,
were liquidated on March 1, 1996, and a protest was timely filed
on May 23, 1996. The subheadings under consideration are:
1704.90 sugar confectionery: other
8501.10 electric motors and generators (excluding
generating sets): motors of an output not
exceeding 37.5 W
9503.80 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)
ISSUE:
Whether the White Ranger Spin Pop is classifiable as a
motorized toy, a motor, or a lollipop.
LAW AND ANALYSIS:
Classification under the HTS 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 HTS by offering guidance in
understanding the scope of the headings and GRIs.
Protestant asserts that the White Ranger Spin Pop is
classifiable, pursuant to GRI 1, as a motorized toy. It says the
shape of the casing and the reuse potential of the motor portion
indicated its principal use as a toy. We disagree.
The Explanatory Notes to Chapter 95 indicate that "[t]his
chapter covers toys of all kinds whether designed for the
amusement of children or adults." The phrase, "designed for the
amusement of" is generally understood to indicate that the use of
an article will be a factor when classification as a toy is being
considered. Additional U.S. Rule of Interpretation 1(a), HTS,
provides that, absent language to the contrary, the following
applies:
[A] tariff classification controlled by use (other than
actual use) is to be determined in accordance with the use
in the United States at, or immediately prior to, the date
of importation of goods of that class or kind to which the
imported goods belong and the controlling use is the
principal use.
Therefore in order to be classified as a toy, the White Ranger
Spin Pop would need to be principally used for amusement.
Customs is of the opinion that the principal use of the
subject merchandise will not be as a toy. In Ideal Toy Corp. v.
United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court
stated that "[W]hen amusement and utility become locked in
controversy, the question becomes one of determining whether the
amusement is incidental to the utilitarian purpose, or the
utility purpose is incidental to the amusement." While the
plastic casing is shaped like a figure which appeals to children,
it is still merely the casing for a utilitarian motor. The motor
function provides the appeal of the article, not its plastic
housing.
EN 85.01 (I)(A) (pg. 1334), states that:
[m]otors remain classified here even when they are
equipped with pulleys, with gears or gear boxes, or
with a flexible shaft for operating hand tools.
Headquarters Ruling Letter (HRL) 952500, dated October 16, 1992,
held that a DC motor, gearbox and encoder assembly was classified
under subheading 8501.10.40, HTS, as an electric motor. HRL
952500, quoting HRL 950834, stated that:
[t]he Explanatory Notes and the rulings interpreting heading
8501, HTS, make it clear that electric motors equipped with
additional components, remain classifiable in this heading,
even if those other components are "quite substantial."
However, it is equally clear that heading 8501, HTS, does
not encompass every assembly which includes an electric
motor. When confronted with an assembly incorporating a
motor which includes additional components other than those
listed in Explanatory Note 85.01, ... rulings... provide the
following guidelines--an electric motor is classifiable
under heading 8501, HTS, even when imported with additional
components (other than those listed in Explanatory Note
85.01) if:
(1) those additional components complement the
function of the motor;
(2) those additional components are devices which
motors are commonly equipped;
(3) those additional components serve merely to
transmit the power the motors produce.
Additionally see, HRL 950834 dated March 6, 1992, which did not
classify an automotive passive seat belt rail assembly under
heading 8501, HTS, because it did not fall into one of the three
categories of assemblies listed above, nor was it similar to the
acceptable additional equipment as listed in EN 85.01.
The motor component of the spin pop is essentially an
electric motor that meets the parameters supplied in EN 85.01.
The plastic housing for the motor while shaped like a "White
Ranger" is not an additional component; it is the housing for the
motor. The subject motor is used to spin a lollipop. However,
this "additional equipment" a lollipop, neither meets the
criteria of EN 85.01 nor the additional three categories.
Therefore, the spin pop article is not classifiable according to
GRI 1, under subheading 8501.20, HTS, as a motor.
Subheading 8501.10 still most accurately describes the motor
component of the article. Subheading 1704.90 which provides for
other sugar confectionery describes the lollipop component.
Inasmuch as the subject article is prima facie described in two
different headings, it cannot be classified according to GRI 1.
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. EN IX to GRI 3(b) , pg. 4, states, in
pertinent part, that:
(IX) For 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.
EN IX to GRI 3(b) also sets forth two examples of articles
regarded as composite goods:
1) Ashtrays consisting of a stand incorporating a
removable ash bowl;
2) Household spice racks consisting of a specially
designed frame (usually of wood) and an appropriate
number of empty spice jars of suitable shape and size.
The EN to GRI 3(b) include as composite goods components which
are attached to one another so as to form a whole, as well as
those components which are separable so long as they are
"mutually complementary," "form a whole" and would "not normally
be offered for sale in separate parts." In determining whether
the subject articles meet the definition of "composite good," we
apply the criteria set forth in the EN to the spin pop.
The spin pops are not attached to one another so as to form
a practically inseparable whole. We must, however, further
examine the merchandise to determine whether the articles are
"mutually complementary," "form a whole" and whether the goods
would "not normally be offered for sale in separate parts." With
regard to the first criterion, the lollipop and motor are
mutually complementary because they work together to create the
spin pop. When the lollipop and motor are combined they do form
the whole known as a spin pop. Finally, while the lollipop may,
in some instances, be offered for sale separately, the motor is
not. Therefore, the spin pop is considered a composite good for
tariff purposes. The classification of composite goods is
governed by GRI 3(b).
GRI 3(b) states, in pertinent part, that:
Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale ... shall be
classified as if they consisted of the material or
component which gives them their essential
character, insofar as this criterion is
applicable.
EN VIII to GRI 3(b), pg. 4, states that:
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.
A comparison of the lollipop's role with that of the motor
indicates that the motor provides the "White Ranger" spin pop's
essential character. The motor continues to perform its
function long after the lollipop is gone. The "White Ranger
Spin Pop" is classifiable under subheading 8501.10, HTS, as
electric motors and generators (excluding generating sets):
motors of an output not exceeding 37.5 W.
HOLDING:
The protest should be DENIED. The White Ranger spin pop is
classifiable under subheading 8501.10, HTS, as electric motors,
of an output under 37.5 W at the 1995 rate of 6.2 percent ad
valorem, with allowance for the cost or value of the lollipop
under 9802.00.8065. Classification to the eight digit level is
dependant upon the value of the motor and whether it is
synchronous.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision 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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels. A copy of this
decision should be attached to the Customs Form 19, Notice of
Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division