United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 959320 - HQ 959469 > HQ 959403

Previous Ruling Next Ruling
HQ 959403

April 11, 1997

CLA-2 RR:TC:MM 959403 MMC


TARIFF NO.: 8513.10.20; 9208.90.00; 9503.90.00.30

Mr. Scott E. Rosenow
Stein Shostack Shostack & O' Hara
1620 L Street , N.W., Suite 807
Washington D.C. 20036-5605

RE: Flashlight, whistle, I.D. badge and "dog tag" packaged together for retail sale; toy set; ENs 95; HRLs 950700, 083279; NYRL 868597

Dear Mr. Rosenow:

This is in response to your letter of May 17, 1996, to the our office in New York, on behalf of the Imperial Toy Corporation, requesting the proper classification of 3 different items you identify as No. 7507A-"Talking Action Police Flashlight Play Set", No. 7507B- "Talking Fire Fighter Flashlight Play Set" and No. 7507C-"Talking Red Alert Space Light Play Set" under the Harmonized Tariff Schedule of the United States (HTS). Your letter, together with samples, was forwarded to this office for response.


You identify the subject articles as No. 7507A-"Talking Action Police Flashlight Play Set", No. 7507B- "Talking Fire Fighter Flashlight Play Set" and No. 7507C-"Talking Red Alert Space Light Play Set". Each contains a flashlight with an electronic device which produces sound, a plastic whistle, dog tags and a preprinted "I.D. card" which must be cut from the back of the packaging.

The flashlights are made of a thin plastic shell which contains a compartment for batteries, two on/off switches (one for light and one for sound) and secures a wrist strap. When the sound switch is activated, a voice mechanism chip emits a shout of either "stop police", "to the rescue" or "red alert" as well as various alarm and siren sounds. When the other switch is turned on it activates a bulb which can illuminate a dark room.

The subject articles are packaged in vibrant, action-oriented colors with drawings of police, fire fighter or space patrol action scenes. They are sold in toy stores or the toy section of department stores.

Whether the flashlight, whistle, I.D. badge and "dog tag" packaged together for retail sale are classifiable, as a whole, as GRI 3 "sets", or in subheading 9503.70 as other toys, put up in sets or outfits, or separately, in other various headings applicable to their individual components


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTS) is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI's 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.

The merchandise consists of an I.D. badge from the back carton portion of the packaging, dog tags, a plastic whistle, and a flashlight with sound component, packaged together for retail sale. The dog tags have a limited use and are described by subheading 9503.90.0030, HTS. New York Ruling Letter (NYRL) 818422 dated February 20, 1996, clearly established that the subject talking flashlight is classifiable as a flashlight, not a toy, under subheading 8513.10.20, HTS. The whistle is described, eo nomine, under subheading 9208.90.00, HTS, as a whistle.

You suggest that all the merchandise has been converted to toys. The ENs to 9503 provide that, "collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets)." Customs, in general, classifies merchandise fitting this description in 9503.70, as toys put up in sets or outfits.

The recently added "Subheading Explanatory Note to Subheading 9503.70" states in pertinent part that, for the purpose of the subheading, "[s]ets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included."

In Headquarters Ruling Letter (HRL) 950700, issued August 25, 1993, Customs explained in which cases certain articles normally classified elsewhere in the HTS may fall within 9503.70 as toys put up in sets, based on the manner they were put up. In that decision, Customs stressed that the criteria applicable to a GRI 3 set put up for retail sale are not applicable to toys put up in sets. Articles which normally would be classified elsewhere in the HTS may be classified as toys when put up together so that they are designed and used principally for amusement, but in the case of GRI 3 sets, the articles must meet a particular need or carry out a specific activity.

When determining which articles qualify as toys put up in sets, that ruling notes, in general, that:

[Subheading]...9503.70 encompasses a combination of two or more mutually complementary complete articles in a retail package, the essential character of which is established by the combination of the articles and not by any individual article in the combination. Customs will not classify as a toy set any retail package sold to children which merely contains more than one item. Instead, it is our position that merchandise classified in 9503.70 should contain complementary articles generally used together as a combination, and not individually, to provide amusement (e.g., some nexus exists between the components which work together to amuse). However, not all the articles are required to be used at the same time to be considered toys put up in sets. In addition, no individual article should predominate over any in the combination.

This combination of articles fails on several levels to meet the subheading 9503.70, HTS, toy set requirements.

As is the case with the flashlight and whistle, when a article has both the potential for amusement and utility the question of determining whether it is converted to a toy becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement (See: Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977)). The flashlight and whistle are fully functioning articles which have not only the possibility but more likely the probability of being used as such. When tested, the flashlight lit up a darkened room and the whistle was audible in a large room. While providing some amusement clearly the amusement is incidental to the utilitarian purpose. Moreover, neither the flashlight or whistle's use is limited in any way. Finally, the flashlight is far more valuable, much larger in bulk weight, and serves a dual function of lighting as well as providing sound. It is clearly the dominant article of the grouping.

We note that the fact that the flashlights have an electronic device which produces noise and phrases does not convert them to toys. In 1989, anticipating classification problems with respect to merchandise containing such musical mechanisms, the Customs Cooperation Council (now the World Customs Organization or WCO) provided guidance which Customs has long followed. With electronic chips having become relatively inexpensive and simple to install in a wide variety of products, the CCC suggested that merchandise containing battery-operated chips with speakers, should be classified in the same headings as the corresponding articles not incorporating such modules.

You cite New York Ruling Letter (NYRL) 868597, issued December 4, 1991, in which a "fireman play set" containing a plastic fire axe, flashlight, wallet with I.D. card, badge, whistle and binoculars was classified as toys put up in sets. As the evidence presented for that ruling pertaining to the composition and nature of the various components as well as their relationship to each other is not obtainable, we do not find the ruling controlling.

Finally, you cite HRL 083279, issued February 20, 1990, in which Customs held that a "G.I. Joe Field Belt" which consisted of a flashlight, whistle, compass, shovel, canteen, and plastic knife all of which were packaged and sold as a set and marketed as toys were held to be toy sets. Customs stated that each of the components were either clearly toys, or functional articles with a limited use. Neither is the case with these components. With the exception of the dog tags, none of the components have been determined to be toys and the functional components, the flashlight and whistle do not have a limited use. Furthermore, the flashlight clearly is the dominant component of the grouping. Accordingly, the articles are not classifiable, pursuant to GRI 1, as toy sets under subheading 9503.70, HTS.

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. GRI 3(b) provides, in pertinent part, that:

[G]oods 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.

Classifying the subject merchandise first requires determining whether the goods constitute a set. If so, then it must be determined which component imparts the essential character to the set. The ENs state, in pertinent part, that a set must "[c]onsist of products or articles put up together to meet a particular need or carry out a specific activity...." Note X to Rule 3(b). The subject components include a wide variety of articles with varying and disparate purposes; there is no one particular need or specific activity represented by this collection of articles. One article does not in any way enhance the use, play value, functioning or any other aspect of the other. Moreover, we see no way that associating a functioning flashlight with other unrelated articles could transform the resulting combination into a specific activity set classifiable in the toy heading.

Since a set does not exist in this instance, these items must be classified on an individual basis. The flashlights are classifiable under subheading 8513.10.20, HTS, as flashlights, the whistles are classifiable under subheading 9208.90.00, HTS, as whistles and the dog tags with string under subheading 9503.90.0030, HTS, as other toys.


The flashlights are classifiable under subheading 8513.10.20, HTS, with a column on duty rate of 17.5 percent ad valorem.

The whistles are classifiable under subheading 9208.90.00, HTS, with a column one duty rate of 5. 3 percent ad valorem.

The dog tags with string under subheading 9503.90.0030, HTS, with a column one duty rate of free.


John Durant, Director
Tariff Classification Appeals

Previous Ruling Next Ruling

See also: