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HQ 959043



April 11, 1997

CLA-2 RR:TC:FC 959043 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8513.10.20

Ms. Debra A. Belanger
Stein Shostack Shostack & O' Hara
515 South Figueroa Street, Suite 1200
Los Angeles, California 90071-3329

RE: "Talking"Flashlights; Reconsideration of NYRL 818422; EN 95.03; Amico, Inc. v. U.S.; HRLs 083279, 950700; NYRL 868597

Dear Ms. Belanger:

This is in response to your letter of March 14, 1996, requesting reconsideration of New York Ruling Letter (NYRL) 818422 dated February 20, 1996. This ruling classified talking flashlights under subheading 8513.10.20 of the Harmonized Tariff Schedule of the United States (HTS), which provides for portable electric lamps designed to function by their own source of energy...lamps: flashlights. You state that the flashlights are properly classified under subheading 9503.90.0030, HTS, as other toys (except models), not having a spring mechanism.

FACTS:

The subject articles are flashlights with an electronic sound device. They are identified as follows:

Model Numbers Voices and Sound Effects

7357 (Trick or Treat Flashlight) "Trick or Treat," with cat screech and wolf howl

7507a (Police Flashlight) "Stop, police, I got you," with a siren

7507b (Firefighter Flashlight) "To the rescue, on the way," with fire engine sound.

7507c (Space Flashlight) "Red alert, laser fire, red alert, Power beam on," with laser sounds.

The flashlights are housed in a 7" long thin plastic shell which contains a compartment for batteries. On the outside of the shell are two on/off switches (one for light and one for sound) and a wrist strap. When the sound switch is activated, a voice mechanism chip shouts one of the above phrases. The other switch activates a bulb which can illuminate a dark room. The bulb's wattage was not provided. The subject articles are packaged in vibrant, action-oriented colors with drawings of police, fire fighter or space patrol action scenes. They are sold in toy stores or the toy section of department stores.

ISSUE:
Whether the talking flashlights are classifiable as flashlights or other toys

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTS) is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI's may then be applied.

You state that the talking flashlights are converted to toys because they are clearly designed and marketed for the amusement of children. Additionally, you claim that talking flashlights are limited in their use. We disagree.

Heading 9503, HTS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicates that a toy is an article designed for the amusement of children or adults. Heading 9503, HTS, provides for "Other toys...and accessories thereof," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the ENs to chapter 95 indicate that a toy is an article designed for the amusement of children or adults. The ENs to heading 9503 indicate that certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited "use," but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.

In support of your limited use argument you cite Amico, Inc. v. U.S., 71 Cust. Ct. 182 (1978), (hereinafter Amico) . In Amico a flashlight-like device which projected the image of a clown onto a wall was classified as a toy. The Amico device varies significantly from the present flashlights. The "clown flashlights," of Amico were used to project a clown-like image on the surface of a darkened area. In contrast, the subject flashlights are used as lamps to illuminate a darkened area.

Additionally, you cite Headquarters Ruling Letter (HRL) 083279 dated February 20, 1990, and New York Ruling Letter (NYRL) 868597 dated December 14, 1991, both of which classified sets of various articles, each of which contained a flashlight as one of the components, as toy sets. In HRL 950700, issued August 25, 1993, Customs explained in which cases certain articles normally classified elsewhere in the HTS may fall within 9503.70 as toys put up in sets, based on the manner they were put up. Articles which normally would be classified elsewhere in the HTS may be classified as toys when put up together so that they are designed and used principally for amusement.

In both HRL 083279 and NYRL 868597, the flashlight in each was converted to a toy because it was simply one of the components of a set used to complete the theme of playing the role of a policeman, fireman or soldier. It was the flashlight's combination with other articles which converted it to a toy. Therefore, the cases have no bearing on the classification of the subject flashlights.

The flashlight's possible potential for amusement does not outweigh its utilitarian function. When a article has both the potential for amusement and utility the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement (See: Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977)). The flashlights are fully functioning articles which have not only the possibility but more likely the probability of being used as such. When tested, the flashlight lit up a darkened room. Moreover, the "trick or treat" flashlight is designed to be used on Halloween night to light a child's path during trick or treating. Additionally, the subject flashlights's size and construction are consistent with other flashlights and no component of the flashlight limits its illuminating function.

We note that the electronic devices which produce noise and phrases do not convert the flashlights to toys. In 1989, anticipating classification problems with respect to merchandise containing such musical mechanisms, the Customs Cooperation Council (now the World Customs Organization or WCO) provided guidance which Customs has long followed. With electronic chips having become relatively inexpensive and simple to install in a wide variety of products, the CCC suggested that merchandise containing battery-operated chips with speakers, should be classified in the same headings as the corresponding articles not incorporating such modules.

The flashlights are not put up in a form clearly indicating their use as toys. This is so even though they are put up in colorful retail packaging suggesting that amusing articles are to be found within. It is, further, likely that the articles would be sold in toy stores alongside toys because of their appeal to children. These factors are not enough, however, to transform articles that are not toys into toys for tariff purposes.

The flashlights are classifiable under subheading 8513.10.20, HTS, which provides, in pertinent part, for portable electric lamps designed to function by their own source of energy...lamps: flashlights.

HOLDING:

The flashlights are classifiable under subheading 8513.10.20, HTS, with a column on duty rate of 17.5 percent ad valorem.

NYRL 818422 is AFFIRMED.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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