CLA-2 RR:TC:FC 959785 MMC
Port Director of Customs
55 Erieview Plaza, 6th Floor
Cleveland, OH 44114
RE: Protest No.4101-96-100285; Dolly Lolly Spin Pop; HRLs 955233,
952500 and 950843
Dear Port Director:
The following is our response to the application for further
review of protest 4101-96-100285, concerning your decision to
classify articles identified as "Dolly Lolly 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 "Dolly Lolly Spin Pop." It
consists of a plastic casing with a 3 dimensional plastic
likeness from the waist up of a character known as "Dolly Lolly"
affixed to the top. Housed in the casing is a motor, with
accompanying wiring and a 1.5 volt replaceable battery. The
plastic casing measures 4« inches high, one inch wide and one
inch deep. The Dolly Lolly figure measures 1¬ inches high. It
is a figure of a blonde girl wearing a tiara, necklace, earrings
and a netted tutu ballerina costume. Her arms, which are molded
into the body, hold a single rose. A lollipop, inserted after
importation, fits into a depression in the top of Dolly Lolly's
head. When a button on the plastic housing is pushed, the motor
is activated and causes Dolly Lolly, her tutu and consequently
the lollipop, to spin.
Protestant was directed to enter the spin pops under
subheading 8501.10.4060, HTS, 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." Protestant asserts
that the Dolly Lolly Spin Pops are classifiable under subheading
9502.10.0040, HTS, which provides for "Dolls representing only
human beings and parts and accessories thereof: Dolls, whether or
not dressed: Other." The entries, all made in 1996, were
liquidated on June 21, 1996, and a protest was timely filed on
September 3, 1996. The headings under consideration are:
8501 electric motors and generators (excluding generating
sets)
9502 dolls representing only human beings and parts and
accessories 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 Dolly Lolly Spin Pop is classifiable as doll, a
motor or a motorized toy.
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.
Headquarters Ruling Letter (HRL) 955233 dated April 14,
1994, classified a motor housed in plastic casing which would be
combined with a lollipop after importation as a motor. The
analysis in HRL 955233 cited HRL 952500, dated October 16, 1992,
which held that a DC motor, gearbox and encoder assembly was
classified under subheading 8501.10.40, HTS, as an electric
motor. HRL 952500 stated that:
ENs 85.01make it clear that electric motors equipped with
additional components, remain classifiable in heading 8501,
even if those other components are "quite substantial."
However, it is equally clear that heading 8501, HTSUS, 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 EN 85.01, the following guidelines have been
provided--an electric motor is classifiable under heading
8501, HTSUS, 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.
Based on the analysis of HRL 952500, HRL 955233 held that the
motor which would spin lollipops was essentially an electric
motor with additional equipment, i.e., gearing and a shaft, that
was acceptable pursuant to EN 85.01 and/or falls within one of
the three categories listed above.
While the subject motor is used to spin a lollipop it is
imported with "additional equipment", i.e., a plastic figurine of
"Dolly Lolly" which does not meet the criteria of EN 85.01 or the
additional three categories. The Dolly Lolly figurine is not
merely molded as a part of the motor's plastic housing but
appears to have been created separately from it. Additionally,
the Dolly Lolly figurine has an added netted tutu. Because the
motor has an additional component (Dolly Lolly figurine) which
does not meet the criteria of EN 85.01 or the additional three
listed above, it is not classifiable in heading 8501. See HRL
950834 dated March 6, 1992, which did not classify an automotive
passive seat belt rail assembly under heading 8501, HTSUS,
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.
Protestant suggests that the entire spin pop is classifiable
as a doll. We disagree. Heading 9502, HTS, describes only one
section of the spin pop. This section could only be a partial
representation of a doll, which we have not classified as a whole
doll. Conversely, the EN to heading 9503 indicates that the
heading covers toys representing non-human creatures, and that
many of the toys are mechanically or electrically operated.
Heading 9503, HTS, provides, in pertinent part, for "Other toys;
reduced-size ("scale") models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories
thereof." Heading 9503, HTS, describes the article in its
entirety. As such, the Dolly Lolly Spin Pop is classifiable
under heading 9503, HTS, specifically, subheading 9503.80.0010,
HTS. For a further discussion of the classification of spin pops
see proposed HRL 959601, Customs Bulletin and Decisions, Vol. 31,
No. 6, February 5, 1997.
HOLDING:
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed, the protest
should be ALLOWED. The Dolly Lolly Spin Pop is classifiable
under subheading 9503.80.0020, HTS, as "Other toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; parts and accessories thereof: Toys (except
models): Other," with a 1996 general column one free duty rate.
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