CLA-2 CO:R:C:M 951507 MBR

Mr. Paul S. Anderson
Sonnenberg, Anderson, O'Donnell & Rodriguez
200 West Adams Street, Suite 2625
Chicago, Illinois 60606

RE: "2-XL" Robot Shaped Cassette Tape Player/Learning Device; Recorded Cassette Tape; Set

Dear Mr. Anderson:

This is in reply to your letter of February 28, 1992, on behalf of Tiger Electronics, requesting classification of the "2- XL" robot shaped cassette tape player, imported from the Peoples Republic of China, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The "2-XL" is a specialized tape player in the shape of a robot. It is designed to be an interactive learning tool. Specialized cassette tapes pose questions to the listener by utilizing the "Play/Stop/Rewind" buttons. Questions are answered using the four response buttons (1/yes, 2/no/A, 3/true/B, 4/false/C). The specially designed cassette tapes will be imported packaged for retail sale with the "2-XL."

ISSUE:

Is the "2-XL" robot shaped cassette tape player classified under heading 8519, HTSUS, which provides for cassette players, under heading 8543, HTSUS, which provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, or under heading 9503, HTSUS, which provides for toys? Under what provision are the specialized cassette tapes classifiable when imported with the "2-XL"?

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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:

...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) to chapter 95 state that this chapter covers toys of all kinds whether designed for the amusement of children or adults. However, we are in agreement that the "2- XL" is not designed for the amusement of children or adults. It is principally used as an educational good. Therefore, it is not classifiable in chapter 95.

Heading 8519, HTSUS, provides for: "[t]urntables, record players, cassette players and other sound reproducing apparatus, not incorporating a sound recording device." The ENs for heading 8519, HTSUS, state that: "[t]his heading covers all sound reproducing apparatus, whatever the purpose for which it is intended (for example, educational purposes, conferences, radio broadcasting, cinema, dictating mail)." Emphasis added. You argue that "the 2-XL is designed as a learning device and not as a magnetic cassette tape player [which] is further evidenced by the lack of a "fast forward" button, a standard feature on cassette tape players." However, we are not persuaded. The ENs for heading 8519, HTSUS, states that it covers "all sound reproducing apparatus, whatever the purpose for which it is intended (for example, educational purposes...)." There is no requirement of a fast forward button. Therefore, the "2-XL" is classifiable in subheading 8519.91.00, HTSUS.

You have further inquired as to the classification of the "2-XL" imported with the specialized cassette tapes. GRI 3(b) provides direction for the classification of goods put up in sets for retail sale. The rule states, in pertinent part:

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...

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) regarding GRI 3(b), page 4, state:

(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

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(a) consist of at least two different articles which are, prima facie, classifiable in different headings...;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

Based upon the importer's representations, the "2-XL" meets the ENs definition of "goods put up in sets for retail sale" because it: (1) consists of at least two different articles; (2) which are classifiable in different headings; (3) consists of articles put up together to carry out a specific activity; and (4) the articles will be put up in a manner suitable for sale directly to users without repacking.

It is Customs position that the component which imparts the essential character of this set is the robot shaped cassette tape player. Therefore, the "2-XL" set is properly classifiable in subheading 8519.91.00, HTSUS."

However, the recorded audio cassette is prima facie classifiable in subheading 8524.21.30, HTSUS, which provides for: "[r]ecords, tapes and other recorded media for sound....: [m]agnetic tapes: [o]f a width not exceeding 4 mm: [o]ther recordings." Chapter 85, Legal Note 6 provides that: "[r]ecords, tapes and other media of heading 8523 or 8524 remain classified in those headings, whether or not they are entered with the apparatus for which they are intended." Therefore, the cassette must be broken out of the set for classification purposes, and classified separately in heading 8524, HTSUS. See HQ 950925, dated May 12, 1992 for a similar holding.

HOLDING:

The "2-XL" robot shaped cassette tape player is classifiable in subheading 8519.91.00, HTSUS, which provides for: "[t]urntables, record players, cassette players and other sound reproducing apparatus, not incorporating a sound recording device: [o]ther sound reproducing apparatus: [c]assette type."

The recorded audio cassette is classifiable in subheading 8524.21.30, HTSUS, which provides for: "[r]ecords, tapes and other

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recorded media for sound....: [m]agnetic tapes: [o]f a width not exceeding 4 mm: [o]ther recordings." The rate of duty is 9.7 cents per square meter of recording surface.

Sincerely,

John Durant, Director
Commercial Rulings Division