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HQ 966724

May 24, 2004

CLA-2 RR: CR: GC 966724 DBS


TARIFF NO.: 8525.30.9005

Mr. Peter Jay Baskin
Sharretts, Paley, Carter & Blauvelt, PC
75 Broad Street
New York, NY 10004

RE: Reconsideration of NY I85886 and NY I86865; classification of Barbie wireless video camera set.

Dear Mr. Friedman:

This is in response to your letter dated September 18, 2003, requesting, on behalf of your client, KIDDesigns, Inc., reconsideration of New York ruling letters (NY) I85886, dated September 16, 2002, and I86865, dated September 27, 2002, which classified Barbie wireless video camera sets in subheading 8525.30.90, Harmonized Tariff Schedule of the United States (HTSUS), television cameras.

As a preliminary matter, Title 19, Code of Federal Regulations, Section 177.2(b)(ii)(C) states, in relevant part, that reconsideration of a ruling issued by the Director, National Commodity Specialist Division or any service port office may be requested by "an importer or other person to whom a ruling letter is issued." NY I86865 was issued to another importer, a party unrelated to your client. As your client is not the party in interest of NY I86865, it may not request reconsideration of that ruling.

Your request for reconsideration of NY I85886 presents new facts. As such, it is a distinct product and its classification must be determined independently of a review of NY I85886. However, we have reviewed NY I85886, taking into account the arguments you have presented, and found it to be correct. The following affirms that ruling, and sets forth a new classification for the instant Barbie wireless video camera, for which a sample was provided. In addition to your original submission, we have taken into consideration the discussion presented during the teleconference conducted on March 30, 2004, and the additional submission we received on April 23, 2004.


The facts as set forth in NY I85886:

[T]he Barbie Wireless Video Camera [consists] of a pretend video camera which is a battery operated analog camera that can transmit an audio and video signal approximately 10 meters, a receiver that accepts a radio frequency, a microphone [sic]. A [sic] tripod for the camera, a VHS cassette tape, RCA cable and plugs to connect the receiver with a VCR or TV, a power converter for the receiver, and a universal remote control for a VCR and TV. The microphone is plugged into the Video Camera. The camera transmits the video and audio through a Radio Frequency to the receiver. The receiver transmits the signal to a VCR or TV via RCA cables. The remote can be used to control the VCR or TV. And the VHS cassette can be used to record on the VCR. All the items are color coordinated. The camera transmits live images in real time.

The new merchandise currently before us is the Barbie VideoCam Wireless Camera set (model no. BE-278) ("BarbieCam set"). The components of the set are predominantly pink and white and have "Barbie" written on them. The set consists of a battery-operated analog video camera with built-in microphone and two-channel selection, battery-operated wireless receiver with antenna and two-channel selection, batteries, RCA cable and plugs to connect the receiver with a VCR or TV, VHS cassette tape (for recording the video captured by the camera), tripod and fake microphone.

You contend the set should be classified as a toy in heading 9503, HTSUS. In support, you presented information on how it is designed to amuse, how its use is limited and how is it of a class or kind of good principally used as a toy. They include that the camera is designed to look like a camcorder. On one side of the camera has a moveable plastic viewfinder with focus and frame size marks, but it has been portrayed to this office as a fake monitor, a replica of those found on camcorders. The other side of the camera has an adjustable plastic strap so the camera may be held like a camcorder which is too small for many adult hands. Your client has stated that it eliminated moving parts from inside the camera and limited the options on the camera for ease of use by children.

Certain facts in conflict are presented herewith. You state the range of the camera from its wireless base is 30 feet. Testing in this office shows a range of greater than 30 feet. You state that it cannot be used outside. This is presumably due to the fact that the images can be viewed only on a television and/or recorded with a VCR. However, there is nothing that limits the camera's functioning outside so long as it is within the range of the wireless receiver. Your client stated that the microphone in this set, as opposed to the set described in the ruling above, is not a functioning microphone because of the realization that a working microphone was unnecessary for play purposes. However, the camera has a built-in microphone.

In addition to the physical characteristics of the set, you state that the set is designed for children's play. The set is marketed for use by children in lieu of their parent's sophisticated camcorders to create their own videos. The retail box, which contains all of the components, has images of children at a birthday party and recording a fashion show or music video. It is sold in toy stores and to toy buyers of retail and discount stores.


Whether the BarbieCam set constitute goods put up in sets for retail sale for purposes of tariff classification, and whether the goods are classified in a toy provision under heading 9503, HTSUS, or in a cameras provision under heading 8525, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

There is a variety of merchandise at issue, classifiable in numerous headings. GRI 3 must be considered in the classification of merchandise put up in sets for retail sale. GRI 3(b) provides that:

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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN (X) to GRI 3(b) sets forth the following criteria for classification as goods put up in sets for retail sale. The merchandise must:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

As the VHS tape would be individually classified in heading 8523, HTSUS, and the wireless receiver would be individually classified in heading 8528, HTSUS, the subject set consists of at least two different articles which are, prima facie, classifiable in different headings. Each of the components contributes to the capturing and recording of video. Therefore, it consists of products or articles put up together to meet a particular need or carry out a specific activity. Note that not every component need be used all of the time. And the set is imported in the decorative box and packaging which is suitable for sale directly to users without repacking. Thus, the BarbieCam set constitutes goods put up in a set for retail sale. It is classified accordingly to its essential character, which we have determined to be the camera.

The HTSUS provisions under consideration are as follows:

8525 Transmission apparatus for radiotelephony, radiotelegraphy, radiobroadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras:

8525.30 Television cameras:

8525.30.90 Other:

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

9503.90.00 Other:

To classify the camera, we turn first to Section XVI, Note 1(p), which excludes articles of Chapter 95 from classification therein. Therefore, we must determine whether the camera is classifiable as a toy of Chapter 95. The ENs to chapter 95, HTSUS, state, in pertinent part, that “[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although not set forth as a definition of “toys”, this term has been interpreted by Customs as equating “toys” with articles “designed for the amusement of children and adults.” Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977). The article need not be a plaything, that is, it does not have to be played with, provided the quality or emotion induced by the article or use of the article takes on the character of frivolous amusement derived from an article which is essentially a plaything. United States v. Topps Chewing Gum, Inc., 58 CCPA 157, 159 (1971).

Although nothing in heading 9503 or the relevant chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Because heading 9503, HTSUS, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUS. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999).

Factors considered when determining whether merchandise falls within a particular class or kind include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum factors).

In support of classification as a toy, you state the BarbiCam has limited use because it was designed with "simple" features and limited range from its wireless base (Please note our discussion on the FACTS section regarding the range). It was fabricated out of plastic and with limited features for durability and ease of use for children. You state it is for children to use in lieu of their parents' expensive camcorders. As such, you state it was designed to be a pretend camcorder and sold with a fake microphone for children to role-play. The channels of trade are toy stores and toy departments. The expectation of the ultimate purchaser, the parent, is for children to play with it, and the cost is significantly lower than a camcorder. Accordingly, you claim the camera was designed for amusement and that the Carborundum factors denote that it is of a class or kind of good principally used as a toy.

The BarbieCam is a battery-operated analog wireless camera which captures moving images in real time. It operates in the same manner as a surveillance camera and similar to a digital personal computer video camera (a.k.a. webcam), in that the camera has no internal memory or means of image display. Such cameras must be connected to a television and video recording device (e.g., VCR) or, as in the case of a webcam, to an automatic data processing machine such as a personal computer. Such cameras are classified in subheading 8525.30.90, HTSUS, the provision for television cameras. See, e.g., NY I85984 (September 3, 2002) (classifying wireless babycam); NY G86051 (January 26, 2001); NY H84081 (July 26, 2001) (classifying a wireless camera that connects to a television with no internal memory); HQ 966307 (June 6, 2003) (classifying a webcam).

While we do not disagree that several of the Carborundum factors when applied to this set support that it may be of a class or kind of good classifiable in heading 9503, HTSUS, many articles designed for children and sold in toy stores are not toys. Many articles from which a child derives amusement are not essentially playthings. Such articles may provide amusement, but they are not designed to amuse. As such, they are not classifiable as toys. For example, children's play may include drawing or painting; however, materials for drawing or painting are not classified in heading 9503, HTSUS. See generally HQ 957958 (February 8, 1996); HQ 958063 (February 13, 1996); HQ 966198 (July 21, 2003).

Your claimed classification in heading 9503, HTSUS, relies on the proposition that the BarbieCam is like a pretend camcorder. The articles we classify as toys in the rulings you cite in support of your claim are distinguishable from the BarbieCam. Such articles are toys because of their smaller size and have limited capacity from their full size counterparts, and/or are designed for significant role-play. For example, the radio disc jockey set creates a disc jockey environment for role play but is limited in size and function from the components used by a real disc jockey in a radio studio. It transmits over an AM radio station only within the home. The signal cannot actually be broadcast over an entire listening area as with a real radio disc jockey. Moreover, the system requires a metal ground such as a cookie sheet (suggested by manufacturer) to work. See NY I85416 (August 27, 2002).

On the contrary, the BarbieCam's function as a camera is not limited. It captures real time images and displays them on a television set, from which it can be recorded with a recording device no differently than the abovementioned cameras do. The fact the camera is pink and white, designed to be durable for use by a child and is sold in toy stores in a set with a fake microphone does not make it operate any differently than these cameras. No specific role-play is intended. The camera may be used to capture anything within the range of the wireless base, just as any wireless camera. We conclude that the camera is not a toy; it is a camera.

Accordingly, the camera is not classifiable in subheading 9503.90.00, HTSUS. Rather, for the reasons above, it is classified in subheading 8525.30.90, HTSUS. Therefore, under the authority of GRI 3(b), the BarbieCam set is subheading 8525.30.90, HTSUS. While the facts differ, it is for the same reasons that we also affirm NY I85886.


At GRI 3(b), the Barbie VideoCam Wireless Camera set is classified in subheading 8525.30.9005, Harmonized Tariff Schedule of the United States Annotated, which provides for, "Transmission apparatus for radiotelephony, radiotelegraphy, radiobroadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras: Television cameras: Other: Color."


Myles B. Harmon, Director
Commercial Rulings Division

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