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HQ 959784




March 25, 1997

CLA-2 RR:TC:FC 959784 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8501.10

Port Director of Customs
55 Erieview Plaza, 6th Floor
Cleveland, OH 44114

RE: Protest No.4101-96-100250; White Ranger Spin Pop; HRLs 955233, 952500; NYRL A82245

Dear Sir:

The following is our response to the application for further review of protest 4101-96-100288, concerning your decision to classify an article identified as a White Ranger Spin Pop, under the Harmonized Tariff Schedule of the United States (HTS). A sample of the subject articles were submitted for our review.

FACTS:

The article is described as a White Ranger Spin Pop. It consists of a lollipop, a motor with accompanying wiring and a 1.5 volt replaceable battery. The motor is housed in a plastic casing which is molded in the shape of a "White Ranger." At the top of the plastic casing is a small hole where the lollipop stick is inserted. On the bottom of the handle is a panel which can be opened to remove and replace the "AA" size battery. A button on the side of the handle must be depressed to activate the motor which spins the lollipop. The motor component measures 3«" high, 1" wide and 1" deep.

Pursuant to New York Ruling Letter (NYRL) A82245 dated April 25, 1996, protestant was directed to enter the spin pops under subheadings 8501.10.4060, as electric motors and generators (excluding generating sets):motors of an output not exceeding 37.5 W: of under 18.65 W: other: DC: other and subheading 1704.90.3505 which provides for sugar confectionery: other: other: other. Protestant asserts that the White Ranger Spin Pops are classifiable under subheading 9503.49.0020, which provides for other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: other toys and models, incorporating a motor and parts and accessories thereof: toys (except models):other. The entries, all made November, 1995, were liquidated on March 1, 1996, and a protest was timely filed on May 23, 1996. The subheadings under consideration are:

1704.90 sugar confectionery: other

8501.10 electric motors and generators (excluding generating sets): motors of an output not exceeding 37.5 W

9503.80 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)

ISSUE:

Whether the White Ranger Spin Pop is classifiable as a motorized toy, a motor, or a lollipop.

LAW AND ANALYSIS:

Classification under the HTS 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 HTS by offering guidance in understanding the scope of the headings and GRIs.

Protestant asserts that the White Ranger Spin Pop is classifiable, pursuant to GRI 1, as a motorized toy. It says the shape of the casing and the reuse potential of the motor portion indicated its principal use as a toy. We disagree.

The Explanatory Notes to Chapter 95 indicate that "[t]his chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase, "designed for the amusement of" is generally understood to indicate that the use of an article will be a factor when classification as a toy is being considered. Additional U.S. Rule of Interpretation 1(a), HTS, provides that, absent language to the contrary, the following applies:

[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong and the controlling use is the principal use.

Therefore in order to be classified as a toy, the White Ranger Spin Pop would need to be principally used for amusement.

Customs is of the opinion that the principal use of the subject merchandise will not be as a toy. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen 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." While the plastic casing is shaped like a figure which appeals to children, it is still merely the casing for a utilitarian motor. The motor function provides the appeal of the article, not its plastic housing.

EN 85.01 (I)(A) (pg. 1334), states that:

[m]otors remain classified here even when they are equipped with pulleys, with gears or gear boxes, or with a flexible shaft for operating hand tools.

Headquarters Ruling Letter (HRL) 952500, dated October 16, 1992, held that a DC motor, gearbox and encoder assembly was classified under subheading 8501.10.40, HTS, as an electric motor. HRL 952500, quoting HRL 950834, stated that:

[t]he Explanatory Notes and the rulings interpreting heading 8501, HTS, make it clear that electric motors equipped with additional components, remain classifiable in this heading, even if those other components are "quite substantial." However, it is equally clear that heading 8501, HTS, does not encompass every assembly which includes an electric motor. When confronted with an assembly incorporating a motor which includes additional components other than those listed in Explanatory Note 85.01, ... rulings... provide the following guidelines--an electric motor is classifiable under heading 8501, HTS, even when imported with additional components (other than those listed in Explanatory Note 85.01) if:

(1) those additional components complement the function of the motor;

(2) those additional components are devices which motors are commonly equipped;

(3) those additional components serve merely to transmit the power the motors produce.

Additionally see, HRL 950834 dated March 6, 1992, which did not classify an automotive passive seat belt rail assembly under heading 8501, HTS, because it did not fall into one of the three categories of assemblies listed above, nor was it similar to the acceptable additional equipment as listed in EN 85.01.

The motor component of the spin pop is essentially an electric motor that meets the parameters supplied in EN 85.01. The plastic housing for the motor while shaped like a "White Ranger" is not an additional component; it is the housing for the motor. The subject motor is used to spin a lollipop. However, this "additional equipment" a lollipop, neither meets the criteria of EN 85.01 nor the additional three categories. Therefore, the spin pop article is not classifiable according to GRI 1, under subheading 8501.20, HTS, as a motor.

Subheading 8501.10 still most accurately describes the motor component of the article. Subheading 1704.90 which provides for other sugar confectionery describes the lollipop component. Inasmuch as the subject article is prima facie described in two different headings, it cannot be classified according to GRI 1. When goods cannot be classified by applying GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's are applied. EN IX to GRI 3(b) , pg. 4, states, in pertinent part, that:

(IX) For 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.

EN IX to GRI 3(b) also sets forth two examples of articles regarded as composite goods:

1) Ashtrays consisting of a stand incorporating a removable ash bowl;

2) Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.

The EN to GRI 3(b) include as composite goods components which are attached to one another so as to form a whole, as well as those components which are separable so long as they are "mutually complementary," "form a whole" and would "not normally be offered for sale in separate parts." In determining whether the subject articles meet the definition of "composite good," we apply the criteria set forth in the EN to the spin pop.

The spin pops are not attached to one another so as to form a practically inseparable whole. We must, however, further examine the merchandise to determine whether the articles are "mutually complementary," "form a whole" and whether the goods would "not normally be offered for sale in separate parts." With regard to the first criterion, the lollipop and motor are mutually complementary because they work together to create the spin pop. When the lollipop and motor are combined they do form the whole known as a spin pop. Finally, while the lollipop may, in some instances, be offered for sale separately, the motor is not. Therefore, the spin pop is considered a composite good for tariff purposes. The classification of composite goods is governed by GRI 3(b).

GRI 3(b) states, in pertinent part, that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale ... shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN VIII to GRI 3(b), pg. 4, states that:

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.

A comparison of the lollipop's role with that of the motor indicates that the motor provides the "White Ranger" spin pop's essential character. The motor continues to perform its function long after the lollipop is gone. The "White Ranger Spin Pop" is classifiable under subheading 8501.10, HTS, as electric motors and generators (excluding generating sets): motors of an output not exceeding 37.5 W.

HOLDING:

The protest should be DENIED. The White Ranger spin pop is classifiable under subheading 8501.10, HTS, as electric motors, of an output under 37.5 W at the 1995 rate of 6.2 percent ad valorem, with allowance for the cost or value of the lollipop under 9802.00.8065. Classification to the eight digit level is dependant upon the value of the motor and whether it is synchronous.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director

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