CLA-2 OT:RR:CTF:TCM H128417 EG
Ms. Lori Murphy
U.S. JHI Corporation
5975 Hwy T
Spring Green, WI 53588
RE: Revocation of NY L83764, dated April 27, 2005 and NY K88764, dated September 3, 2004: Classification of the “Twilight Turtle”
Dear Ms. Murphy:
This is in reference to New York Ruling Letter (NY) L83764, dated April 27, 2005, issued to you concerning the tariff classification of a product identified as the “Twilight Turtle” under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) classified the subject article in subheading 9405.40.80, HTSUS, which provides for lamps and lighting fittings of a material other than base metal. We have reviewed NY L83764 and find it to be in error. For the reasons set forth below, we hereby revoke NY L83764.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocation was published on June 22, 2011, in the Customs Bulletin, Volume 45, No. 26. CBP received no comments in response to this notice.
FACTS:
The subject article is the “Twilight Turtle,” a battery-operated plush turtle with lights. The Twilight Turtle is composed of textile plush body parts (the head, feet and tail), as well as a textile plush torso with a bottom flap covering a battery case. The upper portion of its body is covered with a perforated plastic shell. Underneath the shell are several LED light bulbs. When illuminated, light shines through the shell to project the pattern of seven constellations onto the surfaces surrounding the Twilight Turtle. The shell incorporates an on/off switch, as well as buttons the user may push to change the color of the light to blue or white. The Twilight Turtle includes an automatic timer that turns off the light after 45 minutes. The Twilight Turtle’s packaging includes a star guide booklet so that the user can identify and learn about the projected constellations.
The Twilight Turtle has received the following awards from the toy industry: “Specialty Toy of the Year,” “Creative Toy Award” and “Best Toys for Kids.” It is marketed as a toy and sold in toy stores.
ISSUE:
Is the Twilight Turtle classified as a lamp or lighting fitting of heading 9405, HTSUS, or as a toy of heading 9503, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The 2011 HTSUS provisions at issue are as follows:
9405 Lamps and lighting fittings including searchlights and spotlights and parts therof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included:
9405.40 Other electric lamps and lighting fittings:
9405.40.80 Other…
* * *
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…
* * *
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that:
In the absence of special language or context which otherwise requires:
… 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.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 95.03 states, in pertinent part:
Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….
* * *
The first issue is whether NY L83764 properly classified the Twilight Turtle as a lamp or lighting fitting of heading 9405, HTSUS. Heading 9405, HTSUS, is a catch-all basket provision for lamps and lighting fittings which are not classified elsewhere in the HTSUS because it contains the phrase: “not elsewhere specified or included.” I.B.M. v. United States, 152 F.3d 1332, 1338 (Ct. Int’l Trade 1998). As is pertinent here, Note 1(l) to Chapter 94 states that “toy furniture or toy lamps or lighting fittings (heading 9503)” are excluded from classification in Chapter 94. Therefore, if the Twilight Turtle can be classified under heading 9503, HTSUS, as a toy, according to GRI 1, it is precluded from classification under heading 9405, HTSUS.
Heading 9503 provides, in pertinent part, for “other toys.” In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000), the U.S. Court of International Trade (CIT) concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under heading 9503, HTSUS, is controlled by the principal use of goods of the class or kind to which the imported goods belong at or immediately prior to the date of the importation. Id. In Lenox Collections v. United States, 20 Ct. Int’l Trade 194, 196 (1996), the CIT held that principal use is “the use which exceeds any other single use.” Thus to be classified as a toy in heading 9503, HTSUS, an article must belong to the same class or kind of goods which have the same principal use as toys.
In Minnetonka, the court determined that a toy must be designed and used principally for amusement and should not serve a utilitarian purpose. Id., 110 F. Supp. at 1026. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977), the U.S. Customs Court (predecessor to the U.S. Court of International Trade) held that when amusement and utility become locked in controversy, the question is whether the amusement is incidental to the utilitarian purpose, or vice versa. Id. at 33. EN 95.03(d) also states that the principal use of a toy is “for the amusement of persons (children or adults).”
To determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976).
Applying the Carborundum factors, we find that the Twilight Turtle belongs to a class or kind of goods principally used for people’s amusement. It is a three-dimensional turtle with a stuffed head, arms, legs and tail. Its size, shape, appearance and plush components provide a clear invitation for children to play, snuggle and relax with it. Secondly, it is marketed as a toy and is sold at toy stores such as Toys R Us. Moreover, it has received numerous awards from the toy industry, including “Specialty Toy of the Year” and the “Creative Toy Award.” Thirdly, the expectation of its ultimate purchaser is that the Twilight Turtle will help a child fall asleep as he or she plays with it. Finally, the Twilight Turtle is used in the same manner as other toys; a child can play with it using the included storybook and star guide to identify the constellations or simply by pushing its buttons to change the colors of the projected lights.
Based on all of the foregoing, we conclude that the Twilight Turtle is classifiable as a toy in heading 9503, HTSUS. Inasmuch as the article is classified in heading 9503, HTSUS, it is precluded from classification under heading 9405, HTSUS. See Note 1(l) to Chapter 94.
HOLDING:
By application of GRI 1 (Additional U.S. Rule of Interpretation 1(a) and Note 1(l) to Chapter 94), the article identified as the “Twilight Turtle” is classifiable under heading 9503, HTSUS. Specifically, it is classifiable under subheading 9503.00.00, HTSUS, which provides for “… other toys …” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY L83764, dated April 27, 2005, and NY K88764, dated September 3, 2004, are hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division