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HQ 959601




March 13, 1997

CLA-2 RR:TC:FC 959601 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8501.10.4060; 9503.80.0010

Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
New York, New York 10048

RE: Request for Reconsideration New York Ruling Letter (NYRL) A82245; "Spin Pops"

Dear Mr. Simon:

This is in response to your letter of August 2, 1996, on behalf of your client CAP Toys, Inc., requesting reconsideration of NYRL A82245, dated April 25, 1996, issued to your client, concerning the classification of various "Spin Pops." We have also taken into consideration the information you presented to Headquarters personnel on November 20, 1996.

FACTS:

The "Spin Pop" articles consist of a handle containing a battery-powered motor (output of .75 to 1.50 watts ("W")) and a lollypop. When depressed, a button on the side of the handle activates the motor causing the lollypop to spin. The samples feature the head and torso of a given three-dimensional cartoon character. Each character's head has a small hole designed to accommodate a given lollypop stick. The four characters are as follows: "Batman" (Item 4500); White "Mighty Morphin Power" Ranger (Item 4505); "Dolly Lolly" -- a ballerina (Item 4510); and "Taz" -- the Tasmanian Devil (Item 4515). For the first two items, only the lollypop spins when the handle button is depressed. For the latter two items, the character itself, as well as the lollypop, spins when the handle button is depressed. The "Spin Pop" articles measure approximately six inches in height, one inch in width, and one inch in depth. On the bottom of the handle, a panel may be opened to remove and replace the "AA" size battery. The handles are made in China. The lollypops are made in the United States and exported for packaging with the other items in China.

In NYRL A82245, Customs classified the Spin Pops in subheading 8501.10.4060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other electric motors, of an output not exceeding 37.5 W of under 18.65 W, other, DC, other, dutiable at 5.7 percent ad valorem; the lollypops in subheading 1704.90.3505, HTSUSA, the provision for other sugar confectionery, dutiable at 6.5 percent ad valorem. As items of US origin, the lollypops were considered for preferential duty treatment under heading 9802.00.8065, HTSUSA.

Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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, 2186 (1993), notice of the proposed modification of NYRL A82245 was published on February 5, 1997, in the Customs Bulletin, Volume 31, Number 6.

ISSUE:

Whether the "Spin Pops" are properly classifiable in heading 8501, HTSUS, as electric motors or in heading 9503, HTSUS, as toys with motors.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

The instant articles, composite goods consisting of different components, cannot be classified by reference to GRI 1 because the components are prima facie classifiable in different headings. The lollypops are classifiable in heading 1704, HTSUSA, the provision for other sugar confectionery. The handles, depending on the design, are classifiable in Chapter 85 or 95, HTSUSA, the provision for other motors or toys with motors, respectively.

In pertinent part, GRI 2(b) states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each of the separate headings refers to only part of the composite article. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states that: [m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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.

Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

The 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 a constituent material in relation to the use of the goods.

Explanatory Note IX to GRI 3(b) states in pertinent part that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

Here, the different Spin Pop components, adapted one to the other, are mutually complementary. Together they form a whole which would not normally be offered for sale in separate parts. While the lollypops are normally sold separately, the lollypop spinners are never sold separately.

Next, to classify the Spin Pops, we must decide which component imparts the essential character. We note that when activated, the motors of the "White Ranger" and "Batman" items spin only the lollypops, not their three-dimensional cartoon characters. In essence, these "Spin Pops" are similar to those ruled upon in Headquarters Ruling Letter (HRL) 955233 (April 14, 1994), issued to you on behalf of your client, CAP Toys, Inc. There, the "Spin Pops" also consisted of handles designed to spin lollypops. However, those "Spin Pops," imported without lollypops, lacked the three-dimensional cartoon character motifs. Nevertheless, we find that the "White Ranger" and "Batman" cartoon characters are purely decorative, in no way tied to activation of the motors. Like the Spin Pops in HRL 955233, the motor component for the "White Ranger" and "Batman" items contributes most to the finished products, in terms of bulk, weight, and value. The motor imparts the essential character for these items. Consequently, the "White Ranger" and "Batman" items are classifiable in Chapter 85.

In contrast, we note that the "Dolly Lolly" and "Taz" cartoon characters spin when the motors are activated, along with the lollypops. This animation of the three-dimensional cartoon characters gives the items separate play value tied directly to activation of the motors. A child activates the motor to play with the moving characters, even without a lollypop. For the "Dolly Lolly" and "Taz" items, the nature of the animated cartoon characters, as motorized toys, contributes most to the finished products, in terms of bulk, weight, and value. The animated cartoon characters impart the essential character of the "Dolly Lolly" and "Taz" items. Consequently, the "Dolly Lolly" and "Taz" items are classifiable in Chapter 95.

HOLDING:

The "White Ranger" and "Batman" items are classifiable in subheading 8501.10.4060, HTSUSA, the provision for "Electric motors . . . : Motors of an output not exceeding 37.5 W: of under 18.65 W: Other, DC: Other," dutiable at 5.7 percent ad valorem.

The "Dolly Lolly" and "Taz" items are classifiable in subheading 9503.80.0010, HTSUSA, as "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other toys and models, incorporating a motor, and parts and accessories thereof, Toys (except models): Incorporating an electric motor." The applicable rate of duty is free.

NYRL A82245 is modified.

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

Sincerely,

John Durant, Director
Tariff Classification

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