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HQ 960348

June 6, 1997

CLA-2 RR:TC:MM 960348 HMC


TARIFF NO.: 8513.10.40

Mr. Andrew L. Berger
Executive Vice President
Superwares, Inc.
1099 Pratt Blvd.
Elk Grove Village, IL 60007-5120

RE: NY B81129 Affirmed; Battery Operated "Animal Flex Light," Item 110; Subheadings 8513.10.40 and 9503.49.00; General Explanatory Note to Chapter 95; Explanatory Note 85.13; Other Portable Electric Lamps Designed to Function by Their Own Source of Energy; Other Toys; Section XVI, Note 1(p); HQs 959043, 959473 and 955356; NYs 818023 and 807496; Ideal Toy Corp. v. United States.

Dear Mr. Berger:

Your letter to the Area Director of Customs, New York Seaport, dated February 26, 1997, on behalf of Superwares, Inc., requesting reconsideration of New York Ruling (NY) B81129, dated February 13, 1997, was forwarded to this office for a reply. Two new samples were submitted.


The merchandise consists of plastic novelty lamps made in the shape of various animal motifs, including a monkey, an elephant, a turtle and a dinosaur. The two samples submitted are the dinosaur and elephant lamps which measure approximately 11 inches in length and consist of extended flexible necks or trunks that protrude from the animals' main body. In the elephant version, the lamp is built at the end the elephant's trunk, and, in the dinosaur version, the lamp is built in the animal's head at the end of its neck. Both lamps operate with two AA batteries (not included) and they are switched on by an on/off button located on the lamps' main body. NY B81129 classified the turtle version of the Superwares' "Animal Flex Light," (flex light) under subheading 8513.10.40 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for portable electric lamps designed to function by their own source of energy...lamps: other.

The provisions under consideration are as follows:

8513 Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading
8512; parts thereof:

8513.10 Lamps:

8513.10.40 Other...4.9%

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof:
9503.49.00 Other...Free


Whether the "Animal Flex Lights" are classifiable as other portable electric lamps designed to function by their own source of energy under subheading 8513.10.40, HTSUS, or as other toys under subheading 9503.49.00, HTSUS.


Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the Notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Section XVI, Note 1(p), HTSUS, which governs chapter 85, HTSUS, excludes articles of Chapter 95, HTSUS. Accordingly, we must first determine whether the subject articles are toys of heading 9503, HTSUS, before finding whether they are provided for in heading 8513, HTSUS.

Heading 9503, HTSUS, applies to toys not specifically provided for in other headings of chapter 95, HTSUS. Although the term "toy" is not defined in the HTSUS, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons (children or adults). It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Headquarters Rulings (HQ) 959043, 957829, 952296, 956524 and 956160, citing Additional U.S. Rule of Interpretation 1(a).

In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, C.D. 4688 (1977), the Customs Court established that when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement. Although this case was decided under the old Tariff Schedules of the United States, we believe that this decision is instructive in determining whether the flex lights are principally used for amusement. See H.Rep No. 576, 100th Cong., 2d Sess. 548 (1988) at 550.

You contend that the flex lights are properly classified under subheading 9503.49.0020, HTSUS, as other toys. To support your contention, you state that the items are presently sold in two major chain stores in the United States and that these stores market and sell the items as toys in their toy area. We disagree with your contention. In this instance, these factors are not enough to transform the flex lights into toys for tariff purposes. In HQ 959043, for example, Customs determined that a "talking flashlight" was not classifiable as a toy of heading 9503, HTSUS, after finding that the flashlight's possible potential for amusement did not outweigh its utilitarian function. The flashlight was found to be a fully functioning article which had not only the possibility but more likely the probability of being used as such. Also, in NY 818023, a plastic, battery-operated portable lamp, known as a "Looney-Light," a very similar lamp to the subject articles before us, was found not to be a toy. In that ruling Customs found that the "Looney-Light" was primarily designed to function as a portable lamp which happened to possess a toy-like motif. It further stated that its unique design allowed the lamp to be curled around or draped over various objects as well as being placed on the ground or worn on the person during the course of several activities. See also HQ 959473; HQ 955356 and NY 807496 for similar findings.

Based upon the evidence and the samples provided, we believe that, as with the articles in the foregoing rulings, the flex lights are not principally used for amusement. The flex lights have a lamp at the end of flexible necks or trunks which are designed to illuminate a book, a desk or other small areas in a room. The flex lights have not only the possibility but more likely the probability of being used as lamps and not as toys, given their design features. The merchandise consists of novelty items with a toy-like motif which does not outweigh the utilitarian use of these articles as portable lamps. We thus find that whatever amusement the flex lights may provide, it is only incidental to their utilitarian function. The articles are simply designed with an entertaining cartoon appearance and, as such, they do not constitute toys of heading 9503, HTSUS.

Furthermore, we believe that the subject merchandise meet the definition of EN 85.13, which states that heading 8513 covers portable electric lamps designed to function by means of a self-contained source of electricity (e.g. dry cell, accumulator or magneto). The flex lights satisfy the definition of the term "portable lamps" which refers only to those lamps (i.e., both the lamp and its electricity supply) which are designed for use when carried in the hand or on the person. Indeed, the flex lights are battery operated lamps which can be easily transported by hand. They are like the "other hand lamps" described in EN 85.13 which include hand lamps often fitted with a simple device for hanging them temporarily on a wall, etc., or designed so that they can be placed on the ground. We therefore conclude that the Animal Flex Lights are provided for in heading 8513, HTSUS. They are classifiable under subheading 8513.10.40, HTSUS, as other portable electric lamps designed to function by their own source of energy.


Under the authority of GRI 1, the Animal Flex Lights are properly classifiable under subheading 8513.10.40, HTSUS, as portable electric lamps designed to function by their own source of energy: lamps: other. The rate of duty is 4.9% ad valorem.

NY B81129 is AFFIRMED.


John Durant, Director
Tariff Classification Appeals Division

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