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HQ 087305


September 7, 1990

CLA-2 CO:R:C:G AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.80

Mr. G. Mylin
Mittelstaedt, Galaviz & Mylin
Custom House Brokers
645 Battery Street
San Francisco, CA 94111

RE: Low powered transceiver. walkie talkie set; House Conf. Rep. No. 100-576; General Explanatory Notes, Chapter 95; Heading 9503; Explanatory Notes 95.03; Subheading 8525.20.20; Section XVI, note

Dear Mr. Mylin:

Your letter of May 7, 1990, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), has been forwarded to this office for reply.

FACTS:

The articles in question are the model RY-1306 low powered transceivers, which are commonly known as walkie talkies. The dimensions of the items are 3-1/4" x 1-1/2" x 8. They have a power on LED and operates on a frequency of 49.820 MHz.

The name of the walkie talkie set is the "wrist rapper", which is emblazed across the front of each device. The articles are encased in a colorful blue and yellow plastic housing. In addition, each article has a strap for convenient attachment to the user's wrists.

ISSUE:

Whether the walkie talkie set at issue is classifiable within heading 8525 or heading 9503, HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes.

The Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level and are useful in ascertaining the classification of merchandise under the HTSUSA. House Conf. Rep. No. 100-576 100th Cong., 2d Sess. 548 (1988) at 549. The General ENs to chapter 95 state that this chapter covers toys of all kinds whether designed for the amusement of children or adults. Furthermore, it also includes equipment for indoor or outdoor games, appliances and apparatus for sports, gymnastics or athletics, certain requisites for fishing, hunting or shooting, and roundabouts and other fairground amusements. General ENs, chapter 95. Customs research indicates that the vast majority of these low powered walkie talkies are designed for use by children and sold in toy stores or toy sections of major department stores. The articles at issue possesses a colorful blue and yellow plastic housing, wrist straps and are named the "wrist rapper". This appearance and design leads to the conclusion that the articles are designed for the amusement of children or adults. Accordingly, it is Customs position that the walkie talkie set at issue is a toy for classification purposes.

Heading 9503, HTSUSA, provides for "[o]ther toys; reduced size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof." This heading covers all toys not included in heading 95.01 and 95.02, many of which are mechanically or electrically operated. ENs 95.03. The walkie talkie set in question satisfies this description. More specifically, the walkie talkie set is described by the terms of subheading 9503.70.80, HTSUSA, which provides for other toys put up in sets.

Subheading 8525.20.20, HTSUSA, provides for low-power radiotelephonic transceivers operating on frequencies from 49.82 to 49.90 MHz. While the walkie talkie operates on a frequency of 49.82 Mhz, it is precluded from classification within this subheading based on the legal notes to chapter 85. Section XVI, note 1(p) excludes articles of chapter 95 (i.e., toys) from classification within this section. Subheading 8525.20.20 is included within section XVI. Based on the fact that the walkie talkie set at issue is properly classifiable as a toy, it is precluded from classification within this subheading.

HOLDING:

The walkie talkie set at issue is classifiable within subheading 9503.70.80, HTSUSA, which provides for toys put up in sets dutiable at the rate of 6.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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