CLA-2 OT:RR:CTF:TCM H085715 CkG
TARIFF NO: 9608.10.00
Port Director
Port of Los Angeles/Long Beach
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400 Long Beach, CA 90802
Re: Internal Advice # 09/40; classification of a Toy Singing Pen
Dear Port Director:
This letter is in reply to your memorandum dated November 12, 2009, forwarding
Request for Internal Advice # 09/40, initiated on behalf of Kamhi World. At issue is the classification of a Toy Singing Pen. The importer claims classification as a toy of heading 9503, HTSUS, or alternatively, as a sound reproduction device of heading 8519, HTSUS.
FACTS:
Each Kamhi World singing pen is a composite of a ball point pen and an audio playback device. Each unit resembles a large, tapered ball point pen and measures 5 5/8” in length, and approximately ¾” at its widest point. The pen contains an ink cartridge measuring 23/8”. Kamhi World does not sell replacement ink cartridges. The pen also contains a sound chip and speaker assembly which plays a recorded song. The article contains three replaceable button cell batteries, for which Kamhi World does sell replacements. The pen has no amplification or recording capability. Clicking the top of the pen turns the music on and off. The tip of the pen is extended or retracted by turning the bottom of the pen.
ISSUE:
What is the classification of the subject device which has the capabilities of playing back recorded songs and of being used as a writing instrument?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The HTSUS provisions under consideration are as follows:
8519: Sound recording or reproducing apparatus:
Other apparatus:
Sound reproducing only:
8519.81.30: Other…
* * * * *
9503: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’
carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…..
9503.00.00: Other………….
* * * * *
9608: Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:
9608.10.00: Ball point pens . . . .
* * * * *
Kamhi world claims classification as toy of heading 9503, HTSUS, or in the alternative, as a music device of heading 8519, HTSUS. Note 1(p) to Section XVI, HTSUS (in which Chapter 85 is located), excludes articles of Chapter 95 from classification in that Section. Note 1(k) to Chapter 96, HTSUS, also excludes articles of Chapter 95 from Chapter 96. If the instant articles are classifiable as toys of heading 9503, HTSUS, they are therefore not classifiable in either Chapter 85 or Chapter 96.
Although the term “toy” is not defined in the HTSUS, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value for it to be classified as a toy. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the Customs Court held that “when 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.”
Heading 9503, HTSUS, is a "principal use" provision. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). A tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.
In determining whether the principal use of a product is for amusement, and thereby classified as a toy, CBP considers a variety of factors, including: general physical characteristics, expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976).
The physical characteristics of the singing pen are that of a pen. Pens are not considered toys. See e.g., HQ 964679, dated 2001; HQ 961668; dated March 25, 1999; and HQ 960828, dated July 14, 1998. The ultimate purchaser expects to be able to write and listen to a portion of a single song with the pen. We find that the musical pens are no more inherently amusing than any other music producing device such as an mp3 player, CD, music box, etc. Although the marketing of the pen features young people singing into a pen as though it were a microphone, a user could do the same with many music playing devices. This does not give the musical pens the play value of a toy. Hence, at GRI 1, the terms of heading 9503, HTSUS, do not describe the instant merchandise.
The instant musical pens have two separate, independent components; a sound card and speaker assembly, and an ink well and ball point pen head. Audio playback devices are classified in Chapter 85, HTSUS, while ball-point pens are classified in heading 9608, HTSUS. The articles are thus prima facie classifiable under more than one heading. Classification of these articles cannot be determined according to the terms of GRI 1. GRI 2(b) states that "[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."
GRI 3 states:
When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components . . . 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.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The headings covering the article refer only to part of the materials or
components contained therein. Therefore, under GRI 3(a), the headings must be regarded as equally specific in relation to the article, and the article must be classified as if it consisted of the material or component which gives it its essential character, pursuant to GRI 3(b). EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods."
In the instant case, neither function is clearly predominant. While the articles are functional pens, that functionality is limited. The pens have a small ink cartridge, which measures only 23/8” in length, while an average ink cartridge is approximately 4” in length. The smaller ink reservoir limits the lifespan of the pen as a writing instrument. Moreover, there is no replacement ink cartridge sold with the pen or even by the protestant, who also claims that no replacement cartridge is available in the marketplace from other suppliers. Even if a replacement cartridge of the proper size could be found, it is clearly not easily or readily available, indicating that the writing component is a secondary consideration. In contrast, replacement batteries are available and included with the pens.
However, the music playback capability is equally limited; the pen plays only a clip from the featured song at a fixed volume, the sound quality is poor, and there are no playback controls other than a simple on/off button. While the audio component is the focus of the marketing of the article and represents a greater portion of the cost, in appearance and function the article is a pen. Moreover, CBP has consistently held that the presence of a musical or sound producing device should not control the classification of articles that would normally be classified elsewhere. See e.g., HQ 086838, dated July 3, 1990 ("My Talking Storybook" children's book with built-in integrated circuit and electronic reading tray); HQ 950236, dated June 29, 1992 (talking door mats); and HQ 952042, dated September 23, 1992 (“boo” talking doormat).
As the instant goods cannot be classified by reference to 3(a) or 3(b), they must be classified under the heading which occurs last in numerical order among those which equally merit consideration. The pens are thus classified in heading 9608, HTSUS.
The importer cites to HQ 958751, dated December 24, 1996, which classified the Talkboy F/X Recording Pen (Talkboy) in heading 9503, HTSUS, in support of its position. Even though the ruling predates the decision in Minnetonka Brands that applies a principal use analysis to heading 9503, HTSUS, we believe that the ruling would stand under that analysis and can easily be distinguished from the article currently under consideration. With a stated retail price of $20.00, the Talkboy pen was comparatively highly priced for a writing instrument. Most of that cost was associated with sound producing and recording components which were incorporated into the pen. The audio and playback capabilities of the Talkboy F/X were also considerably more elaborate than the Kamhi World pens, as well as more directly targeted to the amusement of the user; the Talkboy featured various sound effects including a horn, crash, siren and bark, as well as a voice changer function. The significant cost differences of the components and more extensive and amusing capabilities of the Talkboy makes the merchandise substantially dissimilar from the instant merchandise.
HOLDING:
By application of GRIs 1 and 3, the Kamhi World singing pens are classified in
heading 9608, HTSUS, specifically subheading 9608.10.00, HTSUS, which provides for “Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609: Ball point pens.” The 2010 column one, general rate of duty is 0.8¢ each plus 5.4% ad valorem.
You are to mail this decision to the internal advice requester no later than 60
days from the date of the decision. At that time, the Office of International Trade,
Regulations and Rulings, will make the decision available to CBP personnel and to the
public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of
the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division