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HQ 958751

December 24, 1996

CLA-2 RR:TC:FC 958751 ALS


TARIFF NO.: 9503.90.0030

Paul S. Anderson, Esq.
Sonnenberg & Anderson
200 South Wacker Dr.
33rd Floor
Chicago, IL 60606

RE: Revocation of New York Ruling Letter (NYRL) 808911, Dated April 25, 1995, Regarding Talkboy F/X Plus Recording Pen

Dear Mr. Anderson:

In NYRL 808911 Customs held that the subject article was classifiable as a ball point pen. We have reviewed that ruling pursuant to your request for reconsideration and believe that it should be revoked. 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) (hereinafter section 625), notice of the proposed revocation of NYRL 808911 was published November 13, 1996, in the Customs Bulletin, Volume 30, Number 45/46.


The Talkboy F/X Plus Recording Pen is an article shaped like a pen. It is 6 inches in length with a barrel diameter of approximately 5/8 inch. It has a clip which permits it to be clipped to a shirt pocket and it has the writing capability of a pen. In addition, it has various electronic capabilities. These include the ability to record and play messages, to alter the recorded sound by the use of a built-in pitch modulation switch that makes the user's voice higher or lower than normal, a LED - 2 -

(light emitting diode) to show when a message is being recorded, and buttons which permit playback of a message(s) or their erasing. It has a 12 second recording capability. The pen also has a series of 6 buttons which emit various sounds when pressed, e.g., barking and ringing.


What is the classification of the subject device which has the capabilities of recording and playing back sounds, producing sounds and of being used as a writing instrument?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the classification of this article, we note that NYRL 808911 placed it in the provision for pens because of its writing capability. It has long been our practice to classify utilitarian objects with toy-like motifs or play features as the functional object they are. Several factors, however, caused us some concern as to whether this article would be considered a pen in the marketplace. The article is rather thick for a pen intended to be used by children ages 7 and up; we had some question as to whether a young child could write with the pen. Since thick pencils, known as primary pencils, are designed for use by young children just learning to write, we concluded that the thickness of the article would not keep it from being considered a pen. In examining the ink reservoir of the pen, we noted that it was merely 2" long rather than 4", the length of a normal ball point pen ink refill. Although a spare refill was provided with the article, we were concerned as to whether a refill of such size was available in the marketplace. We were unable to confirm such availability. We, therefore, were concerned as to whether this article might be purchased for its writing capabilities at the stated retail price of $20, if appropriate refills were not available.

Counsel has advised us that:

"...replacement cartridges are not available in retail stores, and (company name) does not promote retail sale of the cartridges. Therefore, a purchase of the Talkboy F/X Plus must take the initiative and contact (company name) should he or she wish to purchase a replacement cartridge. Only under those circumstances will (company) provide replacement cartridges, at cost plus handling charges. Over the course of one year, (company's) statistics indicate that the amount of pen cartridge replacement requests is negligible, with only about (minimal number) cartridges sold, while over (a very large quantity of) Talkboy F/X Plus units were sold during this same period."

Based on the above and the fact that the article has other capabilities, we have examined those other capabilities. We note that the article has the capability of recording and playing back messages of 12 seconds in length, which is comparable to electronic memorandum devices sold for commercial purposes. While the sound quality of the article may not compare to that of relatively high priced electronic memorandum devices, we have confirmed, by empirical observation, that such sound quality is comparable to available commercial units in a price range equal to and somewhat higher than the instant article. In Headquarters Ruling Letter (HRL) 958302, dated October 17, 1995, we held that a device with such capabilities was a sound recording apparatus classifiable in subheading 8520.90.0080, HTSUSA.

In further examining the features of the Talkboy F/X Plus, we found that while it maintains the utilitarian capabilities of an electronic memorandum device, it has the added capability of making 6 different sounds. This capability makes it similar to certain sound producing devices marketed for amusement purposes, some are marketed to adults, which have no utilitarian purpose.

In HRL 081831, dated May 17, 1989, HRL 086838, dated July 3, 1990, HRL 950236, dated June 29, 1992 and HRL 952042, dated September 23, 1992, we held that the presence of a musical or sound producing device should not control the classification of articles that would normally be classified elsewhere. These items were utilitarian articles with added noise making capabilities ancillary to their main utilitarian function. The instant article maintains a similar relationship but also permits the user of the article to utilize such noise making capabilities - 4 -
independent of or with its utilitarian function. The Talkboy F/X Plus packaging indicates that the article is intended to children 7 and up. The article was used in a comedy film prior to its initial commercial marketing. The F/X in the title of the article is apparently related to the entertainment industry acronym for "special effects." When considering the sound recording/playback and noise making capabilities of the instant article, we believe that the noise making capability, as between the two capabilities, is the focus of the article. That capability is not ancillary, as in the aforementioned rulings, to the primary purposes of those articles.

Another factor entering into this consideration, as previously referenced, is the writing capability of the article and the fact that merchandise with a functional component is normally classified based on that component. While the subject article has a writing capability, we do not believe that it should be considered a functional pen. In this regard, we note the limited size of the pen refill, the unavailability of those refills in a normal commercial marketplace, and the fact that the refills are only available from the importer with some difficulty and at an expense apparently exceeding what a purchaser might expect to pay for a ball point pen refill at a retail store.

Our conclusion as to the functionality of the "pen" is limited to the subject article, as herein described. If, for example, the article featured a refill similar to those with which a ball point pen is normally marketed or if refills of the size noted were available in the normal marketplace, whether supplied by the importer or another supplier, the question of functionality would have to be reexamined.

Based on the noise making focus of the article and the above conclusion as to functionality of the pen component, we have concluded that the Talkboy F/X Plus should be classified as a toy. In this regard, we have concluded that it provides the manipulative play value or frivolous entertainment characteristics of toys because of its noise making features, the primary focus of the item. The amusement value of this article is more than an incidental component of the article.


The Talkboy F/X Plus is classifiable in subheading 9503.90.0030, HTSUSA, which provides for Other toys;...Other, Other, Other toys (except models), not having a spring mechanism. Merchandise so classified is subject to a free general rate of duty.

NYRL 808911 is hereby revoked. In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).


John Durant, Director
Tariff Classification

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