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HQ 958944

FEBRUARY 11, 1998

CLA-2 RR:CR:GC 958944 JAS


TARIFF NO.: 9503.80.00

Port Director
U.S. Customs Service
312 Fore Street
Portland, Maine 04112-4688

RE: Protest 2904-95-100282; Battery Packs; Battery Charger, Parts and Accessories for Toys, Chapter 95, Note 3; Sets, Essential Character, GRI 3(b), HQ 954061, HQ 955105; Headings 8504, 9503; Mita Copystar America, Inc. v. U.S.; Bauerhin Technologies Ltd. et al v. U.S.

Dear Port Director:

This is our decision on Protest 2904-95-100282, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of battery packs with and without battery chargers. The subject merchandise was entered between May 30 and July 4, 1995, and the entries liquidated between September 15 and October 20, 1995. This protest was timely filed on December 11, 1995.


The merchandise consists of several models of nickel-cadmium battery packs and battery chargers packaged together in clam shell packages, together with separately presented nickel cadmium battery packs. Specifically, style 2989 6v battery pack, style 2990 6v battery pack/charger, and style 2997 9.6v battery pack/charger, the latter two of which are referred to as "sets," are in issue here. The battery packs and chargers are said to be dedicated for use with Tyco's radio controlled (R/C) toy vehicles. For example, Tyco's 6v battery pack measuring 2 in. x 3 in., is said to be specially designed to clip into the bottom of and power Tyco's R/C vehicles. It also clips into the plug-in battery charger which measures 2 3/4 in. x 4 1/4 in. A sample battery pack and charger, submitted in connection with this
protest, are each color-coded and bear the designation "6.0V Jet Turbo." It is claimed the battery packs are not readily capable of alternative uses.

The battery packs with and without battery chargers were entered under subheading 9503.80.00, HTSUS, which provides for parts and accessories of toys and models, incorporating a motor. The battery packs were classified in liquidation under subheading 8507.30.80, HTSUS, which provides for other nickel-cadmium storage batteries. The battery packs with chargers packaged together in clam shells were deemed to be "sets" for tariff purposes and classified in subheading 8504.40.00 (now 40.70), HTSUS, as other static converters.

The provisions under consideration are as follows:

8504 Electrical transformers, static converters (for example, rectifiers) and inductors; power supplies for automatic data processing machines or units thereof of heading 8471

8507 Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof

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


Whether the battery packs, imported separately or packaged together with battery chargers in clam shell packages, are provided for in heading 9503, HTSUS, as parts and accessories of toys.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Counsel for the protestant contends that the battery packs, imported separately or with battery chargers, are classifiable as parts or accessories of toys, under heading 9503, HTSUS. In a memorandum in support of this Protest, at a conference in our office on September 18, 1996, and in letters dated, October 10, 1996, and June 11, 1997, counsel makes the following arguments: the special design, manner of advertising and marketing of these articles indicates the battery pack/charger sets are principally, if not solely used with R/C toy vehicles; the R/C vehicles cannot be used without the batteries which must be recharged periodically; the battery packs are not interchangeable and none can be substituted for any other; numerous administrative rulings on similar merchandise support protestant's sole or principal use argument; Additional U.S. Rule of Interpretation 1(c), HTSUS, does not operate here as Chapter 95, Note 3, HTSUS, takes precedence; and finally, the Court of International Trade's discussion of the term "parts and accessories" in Mita Copystar v. United States, Slip Op. 97-73 (Ct. Int'l Trade, decided June 4, 1997), supports the sole or principal use argument with respect to the merchandise in issue here.

Chapter 95, Note 3, HTSUS, provides that "[s]ubject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles." Thus, if the battery packs and battery packs with chargers are provided for in heading 9503, HTSUS, as parts and accessories of toys of heading 9503, HTSUS, then those articles, or either of them, must be classified in subheading 9503.80.00, HTSUS.

We agree with protestant's assertion on pp. 5 and 6 of its October 10, 1996, submission, that a nickel-cadmium battery pack and charger, packaged together as indicated, constitutes goods put up in sets for retail sale under GRI 3(b), HTSUS, and that the battery imparts the essential character to the set. See HQ 954061, dated May 13, 1993, and HQ 955105, dated December 10, 1993. These rulings distinguished HQ 083672, dated May 16, 1989, which classified nickel-cadmium batteries and module/adapters in subheading 8504.40.00, HTSUS, as static converters (for example rectifiers). Unlike the adapters considered in the cited rulings, which were intended to recharge only the battery in the set or a battery of like voltage, the adapter in HQ 083672 could recharge all of the various sizes of consumer rechargeable nickel cadmium batteries. Therefore, we agree that the battery packs and battery pack/chargers in issue here are to be classified as if consisting of the nickel-cadmium battery.

The question remains whether nickel cadmium batteries are "parts and accessories" of heading 9503. Counsel maintains that Mita Copystar America, Inc. v. United States, Slip Op. 97-73 (Ct. Int'l Trade, decided June 4, 1997), supports its "parts and accessories' claim. We disagree. The Court in Mita Copystar upheld Customs classification of cartridges containing chemical toner for photocopiers in heading 3707, HTSUS, as chemical preparations for photographic uses, because under General Rule of Interpretation (GRI) 3(b), HTSUS, the toner imparted the essential character to the good. This decision represents a rejection of plaintiff's claim under heading 9009, HTSUS, as parts and accessories of photocopying apparatus. Therefore, any discussion of "parts and accessories" in Mita Copystar must be regarded as dictum, and is not controlling authority in this case.

The evidence is inconclusive on whether the battery packs and chargers in issue are accessories for toys of heading 9503. The term "accessory" is not defined either in the text of the HTSUS or in the ENs. Counsel has cited several administrative rulings on the issue of "accessories" for purposes of Chapter 95, Note 3, HTSUS. However, the status of such rulings as precedent must be in the context of the particular merchandise they deal with. None discussed battery packs or battery pack/chargers in clam shell packages, nor are we aware of any judicial or administrative decision in which nickel cadmium battery packs or battery pack/rechargers have been held to be accessories for toys of Chapter 95.

On the issue of whether the battery packs and battery chargers are "parts" for tariff purposes, articles that are integral, constituent components of another article, without which that article could not operate in its intended capacity, have been held to be parts under the HTSUS. See Bauerhin Technologies Ltd. et al v. United States, Slip Op. 95-206 (Ct. Int'l Trade, decided December 26, 1995), aff'd. Slip Op. 96-1275 (Fed. Cir., decided April 2, 1997), and cited cases. In this case, whether a R/C vehicle imported without a battery would nevertheless be classified as a toy of heading 9503 is not controlling. Nor, is it legally significant that a child might play with and derive enjoyment from the vehicle, without the battery, in the same way he would with a non self-propelled vehicle. It is apparent that the battery packs, and the battery pack/charger sets classified as if they were batteries, fit into the specially configured compartment on the underside of a R/C vehicle so that their respective electrical contacts mate. This functional interrelationship permits the battery to interact electrically with the mechanical components of a R/C vehicle by rendering them operational. Hence the appellation "R/C." The battery packs and battery pack/chargers are integral, constituent components of a R/C vehicle, without which that vehicle cannot operate in its intended capacity as a R/C vehicle.

It is important that any announced rule of law be applied carefully, in the context of the particular facts under consideration. In this case, the nickel cadmium batteries and battery pack/charger sets are unique articles of commerce, the tariff status of which must be evaluated in the context of their singular relationship with a R/C vehicle. Based on the particular facts here, it is Customs position that the batteries and battery pack/charger sets in this case are integral, constituent and component parts necessary to the completion and proper operation of the R/C vehicles with which they are principally, if not solely, used.


Under the authority of GRI 1, the nickel-cadmium battery packs imported separately, and the nickel-cadmium battery packs and chargers imported in clam shell packages as sets, are provided for in heading 9503. They are classifiable in subheading 9503.80.00, HTSUS.

The protest should be ALLOWED. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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