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January 4, 1999

CLA-2-95:RR:NC:SP:225 C85545

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. John B. Rehm
Dorsey & Whitney LLP
Suite 200
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036

RE: The tariff classification of a toy from China

Dear Mr. Rehm:

In your letter dated December 1, 1998 you requested a tariff classification ruling on behalf of your client Trendmasters, Inc.

A sample of the “Mr. Tooty” pen was received with your inquiry. The product is a non-refillable pen which features a liquid crystal display (LCD) screen and speaker. The LCD incorporates an interactive electronic, cartoon-type, character, as well as, a clock with time and date functions. Three buttons are located on the pen which activate the clock, various sounds and the electronic movement of the character. The item produces a total of 18 comical wise cracks and amusing sayings. It contains a sensor which alerts the pen to changes in it’s position so that appropriate remarks may be played. Even while in an idle state the pen may occasionally speak or make sounds.

According to your letter, the pen is available in three styles and assorted colors: “Mr. Tooty,” “Girly” and “Rudie.” It operates on one lithium cell battery (replaceable) which is included. The pen is marketed to children ages 4 to 11 and is sold in a blister “Try Me!” style package.

The classification of merchandise under the HTS is governed by the General Rules of Interpretation (GRI'S). GRI 1 of the HTS, 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...".

GRI 3 states, in pertinent part, the following: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods 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.

Explanatory Note VIII to GRI 3(b) of the Harmonized Commodity Description and Coding System, page 4, states that: (VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In reviewing the pen’s functions we note that the article has a nonrefillable 3/4" ink reservoir which restricts it’s use as a permanent writing instrument. The wide construction of the pen, necessary to accomodate the LCD screen, makes writing awkward but does not hinder such use entirely. In order to view the time, one must hold down a single button which, upon it’s release, will return the screen to the character mode. Due to the need to hold down the button to view the time and the lack of emphasis placed on the clock function, we would consider the clock to play a subordinate role in comparison to that of the pen’s other capabilities. Whereby, the packaging directs us to a “Try Me” feature which activates both movement of the character on the screen and the broadcast of humorous phrases. It is clear by the marketing of this product that the talking cartoon character displayed on the LCD screen is the primary attraction.

This ruling remains consistent with Customs position on similar types of articles with multiple functions where the toy aspect was determined to preside over other attributes of limited function. See HQ 958751, dated December 24, 1996, which classified a “Talkboy F/X Plus Recording Pen” as a toy. It is, therefore, our conclusion that the electronic cartoon-like character of “Mr. Tooty” has a captivating appeal in both it’s visual and sound stimulating effects which are fundamental in nature to the article as a whole.

The applicable subheading for “Mr. Tooty,” “Girly,” and “Rudie” will be 9503.90.0045, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys: other: other toys and models. The rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-466-5538.

Sincerely,

Robert B. Swierupski
Director,

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