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NY I82519




May 31, 2002

CLA-2-95:RR:NC:2:224 I82519

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0080; 9504.90.4000

Katherine McMahon
The Camelot Company
9865 West Leland Ave.
Schiller, IL 60176

RE: The tariff classification of two toys and two game pens from China.

Dear Ms. McMahon:

In your letter dated May 22, 2002, you requested a tariff classification ruling, on behalf of Spilbury, your client.

You are requesting the tariff classification on four items that are identified as follows: Item # 1020, Night Vision Explorer, Item # 1042, Sonic Explorer, Item # 1033, Grand Prix Game Pen and Item # 1034, Snowboard Game Pen. The Night Vision Explorer and the Sonic Explorer are clearly designed for the amusement of children. The Sonic Explorer has limitations on the sound level appropriate for use as a toy, while the Night Vision explorer has a lack of voltage for the same reason: appropriateness for a toy item. The game pen functions as both a pen and a game machine. The product (both item #s 1033 and 1034) is a non-refillable pen that features an attached mini electronic game on the top of each pen. The pen is available in many game variations, among them, the Grand Prix game and the Snowboard game. You have not requested the return of your samples.

The classification of merchandise under the HTS is governed by the General Rules of Interpretation (GRI’S). GRI 1 of the HTS, states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes”

GRI 3 states, in pertinent part, the following: When, by application of rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (b) Mixtures, 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.

In reviewing the pen’s functions, it is noted that the article has a non-refillable ink reservoir that restricts its use as a permanent writing instrument. The construction of the pen makes writing slightly awkward, but does not hinder such use entirely. However, it is clear by the packaging of this product that the electronic game feature of the item is the primary attraction/selling point of the game pen. The essential character is imparted to the whole good by the electronic game attached to the pen. The game pens will be classified in Chapter 95 of the HTS as electronic game machines.

The applicable subheading for the toys, item # 1020, Night Vision Explorer and item # 1042, Sonic Explorer, will be 9503.90.0080, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: OtherOther.” The rate of duty will be free.

The applicable subheading for the two game pens, item #s 1033 (Grand Prix Game Pen) and 1034 (Snowboard Game Pen), will be 9504.90.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other: Game machines, other than those operated by coins, banknotes (paper currency), discs or similar articles; parts and accessories thereof.” The rate of duty will be free. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Tom McKenna at 646-733-3025.

Sincerely,

Robert B. Swierupski
Director,

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