CLA-2 RR:CR:GC 965360 AML
Ms. Susan Kohn Ross
S. K. Ross & Assoc., P. C.
Attorneys at Law
5777 West Century Blvd.
Suite 520
Los Angeles, CA 90045-5659
RE: Control pads for toy sets; NY D84425 revoked
Dear Ms. Ross:
This is in reference to New York Ruling Letter (NY) D84425, issued to you by the Director, Customs National Commodity Specialist Division on November 18, 1998, which concerned the classification of a control pad for toy sets under the Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered NY D84425 and now believe that the classification set forth is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), 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), a notice was published on January 2, 2002, in Vol. 36, No. 1 of the Customs Bulletin, proposing to revoke NY D84425 and to revoke the treatment pertaining to the control pads for toy sets when imported separately from any other article. No comments were received in response to this notice.
FACTS:
The articles were described in New York Ruling Letter (NY) D84425, dated November 18, 1998, as follows:
The item (# 04710), marketed as Rokenbok’s Control Pads, are designed to be used in conjunction with Rokenbok’s toy building sets.
These control pads are specifically designed for facilitating the operation, by a child, of radio controlled toy vehicles.
In a related ruling (NY D82030, dated September 16, 1998), Customs described the toy set, in pertinent part, as follows:
The Command Deck incorporates a technology called “Addressable Multi-Player Digital Radio Control” (ARM-RC), which uses digital Multi-plexing so that a single radio transmitter is capable of simultaneously controlling multiple RC toys. The Command Deck utilizes an AC adapter for electrical power and incorporates a single frequency radio transmitter. It is white in color and measures approximately 9 inches x 1-1/2 inches x 8 1/2 inches in width, height and depth, respectively. It has an 8 inch antenna in its center which is surrounded by slots for eight “radio keys.” It also has four ports on the front which allow for the connection of up to four (4) hand-held Control Pads, which players use to control up to eight (8) RC vehicles. The white hand-held Control Pad contains eight (8) light emitting diode indicators which show the player(s) which of the eight (8) possible RC vehicles has been selected.
ISSUE:
Whether the control pads, imported separately from any other article, are classifiable under subheading 8529.90.19, HTSUS, which provides for parts suitable solely or principally with apparatus of headings 8525 to 8528: other: of radar . . . or remote control apparatus: other: other; under subheading 8537.10.00, HTSUS, which provides for boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading
8535 or 8536, for electric control or the distribution of electricity, for a voltage not exceeding 1000V, other; or under subheading 9503.70.00, HTSUS, which provides for other toys, put up in sets or outfits, and parts and accessories thereof?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]”
The HTSUS provisions under consideration are as follows:
8526 Radar apparatus, radio navigational aid apparatus and radio remote control
apparatus:
Other:
8526.92.00 Radio remote control apparatus.
* * *
8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to
8528:
8529.90 Other:
Printed circuit assemblies:
Of radar, radio navigational aid or radio
remote control apparatus:
8529.90.16 Assemblies and subassemblies, consisting of 2 or more parts or pieces fastened or joined together:
8529.90.19 Other.
* * *
8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or
more apparatus of heading 8535 or 8536, for electric control or the distribution of
electricity, including those incorporating instruments or apparatus of chapter 90,
and numerical control apparatus, other than switching apparatus of heading 8517:
8537.10 For a voltage not exceeding 1,000 V:
8537.10.90 Other:
8537.10.9070 Other.
* * *
9503 Other toys; reduced-size ("scale") models and similar recreational models, working
or not; puzzles of all kinds; parts and accessories thereof:
9503.70.00 Other toys, put up in sets or outfits, and parts and accessories thereof.
We reiterate that the issue being considered is the classification of the control pad when it is imported separately from any other article. The classification of machinery and mechanical appliances, electrical equipment and parts thereof, among other things, are classifiable pursuant to the Notes to Section XVI, HTSUS. The Notes to Section XVI provide in pertinent part that the section does not cover: “(p) articles of Chapter 95.” The General ENs to Section XVI provide, in pertinent part, that:
(A) Subject to certain exclusions provided for in the Notes to this Section and to Chapters 84 and 85 and apart from goods covered more specifically in other Sections, this Section covers all mechanical or electrical machinery, plant, equipment, apparatus and appliances and parts thereof[.]
* * *
The main exclusions from the Section are:
(h) Machinery and apparatus having the character of toys, games or sports requisites and identifiable parts and accessories thereof (including non-electric motors and engines but excluding pumps for liquids and filtering or purifying machinery for liquids or gases, which fall in heading 84.13 or 84.21, respectively, and also excluding electric motors, electric transformers and radio remote control apparatus, which fall in heading 85.01, 85.04 or 85.26, respectively) which are suitable for use solely or principally with toys, games or sports requisites (Chapter 95)[bold in original].
We interpret this language to mean the following: toys, games or sports requisites and identifiable parts and accessories thereof are excluded from Section XVI and non-electric motors and engines are included in the exclusion. Pumps for liquids and filtering or purifying machinery for liquids or gases (which fall in heading 84.13 or 84.21, respectively) and electric motors, electric transformers and radio remote control apparatus, which fall in heading 85.01, 85.04 or 85.26, respectively) are excluded parenthetically from the exclusion; that is, those articles fall to be classifiable within Section XVI. Based on this interpretation, we conclude that radio remote control apparatus are included within the ambit of Section XVI.
Thus, if the control pad is classifiable under either heading 8529 or 8537, HTSUS, it cannot be classified under heading 9503, HTSUS. Contrariwise, if the control pad is classifiable in Chapter 95, it cannot be classified in Chapter 85.
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 8526, HTSUS, covers radar apparatus, radio navigational aid apparatus and radio remote control apparatus. The ENs to the heading provide, in pertinent part, that the heading includes “(11) radio apparatus for the remote control of . . . toys” and that, subject to the Notes to Section XVI, “parts of the apparatus of this heading are classified in heading 8529.” Heading 8529, HTSUS, covers parts suitable for use solely or principally with the apparatus of headings 8525 to 8528. The ENs to the heading provide, in pertinent part, that “subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), this heading covers parts of the apparatus of the four preceding headings,” including obviously heading 8526, HTSUS.
Heading 8537, HTSUS, covers electronic control apparatus. The ENs to the heading provide that the articles classifiable therein generally “consist of an assembly of apparatus of the kind referred to in the two preceding headings (e.g., switches and fuses) on a board, panel, console, etc., or mounted in a cabinet, desk, etc.” and that the articles “vary from small switchboards with only a few switches, fuses, etc. (e.g., for lighting installations) to complex control panels for machine-tools, rolling mills, power stations, radio stations, etc., including assemblies of several of the articles cited in the text of this heading.” We assume for the purposes of this ruling that the control pads convert the tactile depression of its buttons to electronic signals that are transmitted over its attached wire. We believe that it is by these means that the control pad functions.
Note 3 to Chapter 95, HTSUS, provides in pertinent part that “subject to Note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” Note 1(m) to Chapter 95 provides that radio remote control apparatus are excluded from classification in Chapter 95. See also the ENs to heading 9503, HTSUS.
An article is to be classified according to its condition as imported. See, XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). In its condition as imported, the control pad is a hand held electrical device incapable of providing amusement. It is our opinion that the control pad, imported separately from any other article, is provided for as a control device. Therefore, the article, in its condition as imported, cannot be classified under heading 9503, HTSUS.
HOLDING:
The control pads are classifiable under subheading 8537.10.9070, HTSUS, which provides for boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, for a voltage not exceeding 1000V, other, other.
EFFECT ON OTHER RULINGS:
NY D84425 is revoked. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division