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HQ 962692

August 31, 2000

CLA-2 RR:CR:GC 962692 JGB


TARIFF NO.: 8513.10.20

Mr. Robert L. Follick
Follick & Bessich
513 West Mount Pleasant Avenue
Suite 205
Livingston, NJ 07039

RE: Reconsideration of NY C89496; Crayola Fun Flashlight

Dear Mr. Follick:

This is in response to your letter of March 25, 1999, on behalf of Polyconcept U.S.A., Inc., requesting reconsideration of New York Ruling Letter (NY) C89692, dated July 13, 1998, which classified the "Crayola Fun Flashlight" under the Harmonized Tariff Schedule of the United States (HTSUS) in subheading 8513.10.2000, the provision for "Portable electric lamps designed to function by their own source of energy. . . ; parts thereof: Lamps: Flashlights." You now seek classification of the flashlight as a toy of heading 9503, HTSUS. You provided additional arguments and information at a meeting at Customs Headquarters on March 23, 2000.


The Crayola Fun Flashlight is a plastic crayon-shaped flashlight which measures approximately 7½ inches long and features a torch light that is activated by depressing the light switch mechanism. A rotary device allows the user to change the color of the beam of light from clear to red or green. The switch has two functions. Depressing one portion of the switch makes the light shine. The light stops shining when the switch is not depressed. The other portion makes the light shine for ten seconds before it turns off automatically. The flashlight by its design and coloration resembles a large Crayola brand crayon. It is marketed to children between the ages of three and seven.


Whether the “Crayola Fun Flashlight” is classified as a toy in heading 9503, HTSUS, or as a flashlight in heading 8513, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 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 HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 8513 covers, in pertinent part, "Portable electric lamps designed to function by their own source of energy. . . ." Note 1(p) to Section XVI, which includes Chapter 85, HTSUS, which, in turn, covers heading 8513, provides that this section does not cover articles of Chapter 95. Thus, if the Crayola Fun Flashlight is classifiable under headings 9503, then note 1(p) to Section XVI precludes classification under heading 8513 and necessitates classification under Chapter 95.

Heading 9503 covers other toys. Although the term "toy," in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS.

If this article can be shown to be designed principally for the amusement of children or adults, it would qualify as an article of Chapter 95, specifically in heading 9503. In the tariff context, “amuse” is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. An examination of the product shows that nothing about it goes much beyond the providing of a light to children within the target age group. That is its function, not amusement. The fact that there exists a choice of lens colors does not convert a functional flashlight into a toy any more than a ball point pen with several alternate colored ink fillers within the same barrel is anything more than a pen.

You note Headquarters Ruling Letter (HQ) 083279, dated February 20, 1990, which pertains to a "G.I. Joe Field Patrol kit" and a "G.I. Joe Field Belt", both of which were classified as "toys put up in sets or outfits" in subheading 9503.70, HTSUS. A close reading of that ruling shows that the canteen and flashlight articles "have a limited use." From this classification, we conclude that flashlights that have a limited use, i.e., ones that are part of a play set for use in playing soldier, may qualify for classification as a toy. The instant facts are to the contrary here. The article is sold alone and not as part of a set and there is no indicated play function. The difference, simply stated, is that with the G.I. Joe set, the toy flashlights with limited use functions as a prop for play activity, not as a flashlight. You also note NY 832823, issued December 7, 1988, as standing for the proposition that a flashlight with colored lenses is classified as a toy. In that ruling, the article did not project a light beam, but merely had colored lenses. In that way, it is unlike the Crayola Fun Flashlight. Moreover, Customs disagrees factually with your argument that the instant flashlight is made of light plastic which would make the article unsuitable for anything but a toy. We note that flashlights are commonly made of plastic and that the instant flashlight is easily as sturdy as general "adult" flashlights. We agree that this is nothing like an electrician's flashlight; however, it is entirely suitable for its intended audience of children. Moreover, there is nothing about heading 8513 and its subheading language, "flashlights", that suggests that the heading does not cover all forms of the named article. Therefore, the argument that the instant flashlight's bright colors and barrel made of plastic would not make it ineligible for classification in heading 8513, HTSUS.

As the arguments and cases presented do not compel classification of the instant article in the toy provision, in that it has not been shown to be designed principally for amusement of children or adults, classification in heading 9503 must fail. As such, the section note to section XVI, supra, does not operate.

Flashlights are classified in subheading 8513.10.20, HTSUS. Customs has accepted the definition of "flashlight" as set forth by the United States Customs Court in its decision in Sanyo Electric Inc. v. United States, 496 F.Supp. 1311 (1980), aff'd, 642 F.2d 435 (1981) pertaining to an interpretation under the previous statute. The Court defined flashlights as "small, battery-operated, portable electric lights." Sanyo, supra, at 1315. In previous rulings, Customs has defined "flashlights" as small battery-operated portable electric lights normally held in the hand by the housing itself. See HQ 084852, issued March 28, 1990. As the instant article meets this definition, it is classified in this provision for "portable electric lamps designed to function by their own source of energy."


The Crayola Fun Flashlight is classified under subheading 8513.10.20, HTSUS.

NY C89496 is AFFIRMED.


John Durant, Director
Commercial Rulings Division

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