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HQ 958302




October 17, 1995

CLA-2 R:C:M 958302 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8520.90.80

Ms. Sandra Swanson
Alrod International, Inc.
880 Stanton Road
Burlingame, California 94010

RE: "Yak Bak" sound recording device; NY 804205 revoked; NY 809199; HQs 087599, 956261; Section XVI, note 1(p); heading 9503; EN 85.20; General EN to chapter 95

Dear Ms. Swanson:

This is in reference to NY 804205, issued to you, on behalf of Yes! Entertainment Corp., on December 13, 1994, which concerned the classification of the "Yak Bak" sound recording device under the Harmonized Tariff Schedule of the United States (HTSUS). A further review of the issue has caused us to reconsider this ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 804205 was published September 6, 1995, in the Customs Bulletin, Volume 29, Number 36.

FACTS:

The article in question is called the "Yak Bak," which is a small recording device which fits in the palm of the user's hand. The user talks into a speaker/microphone while pressing down a button located on the device to record a six second message. Another button activates playback of the recorded message.

ISSUE:

Whether the "Yak Bak" is classifiable as a toy under heading 9503, HTSUS, or as sound recording and reproducing apparatus under heading 8520, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) 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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The headings under consideration are as follows:

8520 Magnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device

9503 Other toys . . .

In NY 804205, dated December 13, 1994, the "Yak Bak" was held to be classifiable under subheading 9503.90.60 (now, 9503.90.00), HTSUS, which provides for other toys (except models), not having a spring mechanism. Note 1(p) to section XVI, HTSUS, states that the section, which includes heading 8520, HTSUS, does not include articles of chapter 95, HTSUS. Thus, if the "Yak Bak" is classifiable under heading 9503, HTSUS, it cannot be classified under heading 8520, HTSUS.

With regard to heading 9503, HTSUS, the ENs to Chapter 95, pg. 1585, indicate that "this chapter covers toys of all kinds whether designed for amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See HQ 956261, dated May 26, 1994; Additional U.S. Rule of Interpretation 1(a), HTSUS. In our opinion, the "Yak Bak" functions in a manner similar to other hand held, sound recording/ reproducing apparatus that are not marketed to children (i.e., similar operating capacities/limited recording times). Moreover, the "Yak Bak" does not provide the manipulative play value or frivolous entertainment characteristic of toys. Further, any - 3 -
amusement derived from the "Yak Bak" is incidental to the device's utilitarian purpose. See HQ 087599, dated March 5, 1991. Thus, the device is not "designed and used principally for amusement," and is not classifiable under heading 9503, HTSUS.

With regard to heading 8520, HTSUS, EN 85.20, pg. 1368, states that the heading "covers all sound recording apparatus, whatever the purpose for which it is intended . . . [and] includes sound recording apparatus, incorporating a sound reproducing device [emphasis added]." The "Yak Bak," though not a sophisticated device, functions as sound recording and reproducing apparatus. Accordingly, the "Yak Bak" is classifiable under heading 8520, HTSUS, specifically under subheading 8520.90.00, HTSUS. See NY 809199, dated May 3, 1995 (wherein "Pocketalkers," similar voice recording and playback devices, were held to be classifiable under subheading 8520.90.00, HTSUS).

NY 804205, dated December 13, 1994, is revoked.

HOLDING:

The "Yak Bak" is classifiable under subheading 8520.90.00, HTSUS, which provides for other sound recording apparatus, whether or not incorporating a sound reproducing device. The corresponding rate of duty for articles of this subheading is 3.1% ad valorem.

In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director

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