HQ H020454

February 14, 2008

**CLA-2 OT:RR:CTF:TCM** H020454 GC

**CATEGORY:** Classification

**TARIFF NO.:** 8513.10.2000

Mr. Kyu Hur

Zen Design Group, LTD.

2850 Coolidge Highway

Berkley, Michigan 48072

**RE:** Tariff classification of keychain and carabiner novelty lights

Dear Mr. Hur:

On November 27, 2007, this office received your correspondence, dated
November 14, 2007, requesting a binding ruling on the classification
under the Harmonized Tariff Schedule of the United States (HTSUS) of
three "Zoolight" products imported by Zen Design Group, LTD. (Zen). Our
ruling follows.

**FACTS:**

At issue are three styles of novelty toy-like products. They are
described as the "Zoolight Keychain", represented by sample Model Number
FG1 (referred to herein as the "Frog Zoolight"); the "Zoolight Keychain
with Sound", represented by sample Model Number ZL-DS1 (referred to
herein as the "Dinosaur Zoolight"); and the "Zoolight Carabiner",
represented by sample Model Number ZCWS (referred to herein as the "Orca
Zoolight").

The Frog Zoolight consists of a plastic device resembling a stylized
frog, measuring approximately 2 inches long by 1.5 inches high by 1.75
inches wide (at its widest points). The Dinosaur Zoolight consists of a
plastic device resembling a stylized dinosaur that measures
approximately 1.5 inches high by 2.25 inches long by 1.75 inches wide
(at its widest points). Both the Frog and Dinosaur Zoolights feature a
u-shaped ratchet lever located on the back of the plastic figure's body,
through which a metal keychain is permanently affixed. The keychain
measures approximately two inches in length with a metal c-shaped hook
at the end, closed by a spring-loaded clasp. The Frog and Dinosaur
Zoolights also operate in the same fashion. When the ratchet lever
positioned on the figure's back is depressed, the creature's mouth
opens, and a red light emitting diode (LED) illuminates. The Frog
Zoolight also emits a frog-like sound clicking that takes place when the
lever that opens the frog's mouth is depressed. The Dinosaur Zoolight
plays roaring sound effect for up to four seconds. The user must
continually hold down the lever in order to maintain the beam of light.
The lights of the Frog and Dinosaur Zoolights (and the sound function of
the Dinosaur Zoolight) are powered by three replaceable button cell
batteries.

The Orca Zoolight consists of a plastic device resembling a stylized
orca, measuring approximately 4 inches long by 1.5 inches wide by 1.5
inches high. The tail of the orca loops around so that tail fins are
connected to the whale's back. The loop serves as a carabiner-like clip
that opens by pushing a portion of tail towards the inside of the loop.
The spring loaded hinge keeps the loop closed when the device is being
used otherwise. The dorsal fin serves as a lever which, when depressed,
causes the whale's mouth to open and red LED to illuminate along with
the orca to emit characteristic noises for approximately two seconds.
The sound and light functions of the Orca Zoolight are powered by three
replaceable button cell batteries. Like the Frog and Dinosaur Zoolights,
the user must continually hold down the lever in order to maintain the
beam of light.

Zen does not propose a specific HTSUS subheading for the subject
merchandise, but does state that the merchandise was designed "with toy
classification in mind."

**ISSUE:**

What is the proper classification under the HTSUS for the subject
merchandise?

**LAW AND ANALYSIS:**

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 2 through 6 may then be applied in order. The HTSUS
provisions under consideration in this case are as follows:

7326 Other articles of iron or steel:

\* \* \*

7326.20.00 Articles of iron or steel wire,

\* \* \*

7326.20.0070 Other

\* \* \*

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:

8513.10.2000 Flashlights

\* \* \*

9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys;
dolls' carriages; dolls, other toys; reduced scale ("scale") models and
similar recreational models, working or not; puzzles of all kinds; parts
and accessories thereof,

\* \* \*

9503.00.0080 Other

\* \* \*

Initially, Note 1(l) to Section XV, HTSUS, and Note 1(p) to Section XVI,
HTSUS, which respectively govern chapters 73 and 85, HTSUS, both exclude
articles of Chapter 95, HTSUS. Accordingly, we must first determine
whether the subject articles are toys of heading 9503, HTSUS, before
determining if the subject Zoolights are classifiable as keychains or
flashlights. Zen believes that the subject articles are properly
classifiable as toys in heading 9503, HTSUS.

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

The EN to heading 9503, HTSUS, indicates that toys are articles
"intended essentially for the amusement of persons (children or
adults)". While Zen states that it designed the subject merchandise
"with toy classification in mind", the Zoolights addressed herein
clearly have utilitarian purposes in addition to the function of amusing
the user. 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.[^1]

Applied to this case, the amusing qualities of the subject Zoolights are
incidental to the functional qualities (either keychains of heading
7326, HTSUS or portable lamps of heading 8513, HTSUS), thus precluding
classification of the subject merchandise in heading 9503, HTSUS.

With respect to the Orca Zoolight, the stylized casing of the LED, the
product's sound effects and the carabiner-like clip on the tale are
incidental to the product's primary function as a portable lamp. While
the LED is hidden within the casing when not in use, the casing does not
obstruct the beam, and the LED is strong enough to illuminate a keyhole
or walkway.[^2] In spite of the fact that the product is equipped with
toy-like features, it still functions as a portable lamp. This
conclusion is supported by the fact that the Orca Zoolight is powered by
replaceable batteries, thus allowing the user to continue using the
product as a portable lamp for as long as desired. The EN to heading
8513, HTSUS, notes that the term "portable lamp" refers only to those
lamps "which are designed for use when carried in the hand or on the
person, or are designed to be attached to a portable article or object."
The Orca Zoolight is indeed a portable electric lamp designed to
function by its own source of energy. It is also designed to be carried
in the hand or on the person via the carabiner-like clip on the Orca's
tail. Consequently, it is provided for in heading 8513, HTSUS.

In addressing the Frog and Dinosaur Zoolights, Note 1(f) to Section XV,
HTSUS, which governs Chapter 73, excludes from Section XV, "Articles of
Section XVI (machinery, mechanical appliances and electrical goods)".
Although the LED component of the Frog and Dinosaur Zoolights is indeed
an article of Section XVI, HTSUS, as it is classifiable in heading 8513,
HTSUS, the keychain component of the goods is prima facie classifiable
under heading 7326, HTSUS. Consequently, GRI 3(b) is implicated. GRI
3(b) states, in pertinent part:

> \(b\) 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.

In this case, the following headings apply: heading 7326, HTSUS
(keychain) and heading 8513, HTSUS (portable lamp). In its discussion
concerning "essential character," the EN to GRI 3(b) states that:

> 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.

Zen has not presented any information concerning the cost or other
specifications pertaining to the Zoolights at issue here. Regardless,
the role of the constituent materials (the portable lamp and the
keychain) in relation to the use of the Zoolight will be the primary
focus of the essential character analysis.

In this case, the portable lamp component primarily contributes to the
use of the Zoolight as opposed to the keychain component. The strength
of the beam emitted by the LED sufficiently illuminates a keyhole or
walkway in the dark, and the light remains on until the user releases
the lever, allowing the user to see the lit area for as long as
necessary. Moreover, the fact that the LED is powered by replaceable
batteries means that the user can take advantage of the portable lamp
for an indefinite duration. These characteristics show that the product
was designed to provide the user with light. The keychain component can
of course be used to hold keys. Also, it can be used to attach the
Zoolight to a belt loop or backpack via the metal clip. As opposed to
being the principal function of the product, the keychain is indicative
of an instance in which the user might require the use of the light
(unlocking a door in the dark, proceeding to one's car in the dark,
etc.), making its function subordinate to that of the light
component.[^3]

The conclusion that the three subject Zoolights are classifiable as
flashlights under heading 8513, HTSUS, is supported by the EN to heading
8513, HTSUS, which states:

The lamps of this heading include:

\* \* \*

> \(7\) **Fancy torches** in the shape of pistols, lipsticks, etc.
> Composite articles composed of a lamp or torch and a pen, screwdriver,
> key ring, etc. remain classified here **only** if the principal
> function of the whole is the provision of light.
>
> (emphasis in original)

As the EN indicates, the article should be classified in heading 8513,
HTSUS, if its principal function is to provide light. While the subject
Zoolights are encased in plastic figures to the point where the LEDs are
not visible, this does not prevent the LEDs from emitting a functional
beam of light. *See* New York Ruling Letter (NY) D80038, dated August 7,
1998 (holding that the Squeeze Bug Light, which consisted of a light
housed in a stylized plastic ladybug with a metal key ring affixed was
classifiable as a flashlight because the light component imparted the
essential character to the product). The light function of the Zoolights
is also prominently advertised on the products' labels. Aside from the
name, Zoo*light*, the labels of the Frog Zoolight and the Dinosaur
Zoolight depict both products with their lights activated along with
wording alluding to the "super bright LED light." Furthermore, the fact
that the products are powered by replaceable batteries, which is
advertised on the reverse side of the label, indicates that the articles
are designed to provide light and not merely as a compliment to the
keychain component or the novelty aspects of the product.

To summarize, the Zoolight products at issue here are not properly
classifiable as toys in heading 9503, HTSUS, per Note 1(l) to Section
XV, HTSUS, and Note 1(p) to Section XVI, HTSUS. They possess components
that primarily function to serve purposes other than simply to amuse the
user. In the case of the Orca Zoolight, this requires classification in
heading 8513, HTSUS, as a flashlight. The Frog and Dinosaur Zoolights
are also classifiable in heading 8513, HTSUS, by virtue of the fact that
the portable lamp component of both products imparts the essential
character of the Zoolights as opposed to the keychain component.

Classification of the subject merchandise within heading 8513, HTSUS,
implicates GRI 6, which states:

> For legal purposes, the classification of goods in the subheading of a
> heading shall be determined according to the terms of those
> subheadings and any related subheading notes and, mutatis mutandis, to
> the above rules, on the understanding that only subheadings at the
> same level are comparable. For the purposes of this rule, the relative
> section, chapter and subchapter notes also apply, unless the context
> otherwise requires.

The pertinent HTSUS provisions are subheading 8513.10.20, HTSUS, which
provides for flashlights and subheading 8513.10.40, HTSUS, which
provides for other portable lamps. The term "flashlight" has been
judicially determined to mean a small, battery-operated, portable
electric light, normally held in the hand by the housing. *See Sanyo
Electric Inc. v. United States*, 496 F.Supp. 1311, *aff'd.*, 642 F2d 435
(CAFC 1981); see also Headquarters Ruling Letter (HQ) 951855, dated July
24, 1993, HQ 084852, dated March 28, 1990, and HQ 962528, dated February
18, 2000. Articles that satisfy this definition are classified under the
eo nomine subheading 8513.10.20, HTSUS. *See also* HQ W968278, dated
March 30, 2007. The subject Zoolights also satisfy the definition of
"flashlights" set forth in *Sanyo*, and they are thus classifiable
accordingly.

**HOLDING:**

By application of GRI 1 for the Orca Zoolight and GRI 3(b) for the Frog
and Dinosaur Zoolights, the subject Zoolights are classifiable in
heading 8513, HTSUS. By application of GRI 6, the goods are specifically
provided for in subheading 8513.10.2000, HTSUSA which provides for:
"Portable electric lamps designed to function by their own source of
energy ...: Lamps: Flashlights." The column one, general rate of duty is
12.5 percent *ad valorem*.

Duty rates are provided for your convenience and subject to change. The
text of the most recent HTSUS and the accompanying duty rates are
provided on the World Wide Web at www.usitc.gov.

> Sincerely,
>
> Gail A. Hamill, Chief
>
> Tariff Classification and Marking Branch

[^1]: Although this case was decided under the old Tariff Schedules of
    the United States, this decision remains instructive in determining
    whether an article is principally used for amusement under the
    HTSUS. *See* Headquarters Ruling Letter (HQ) 960348, dated June 6,
    1997 (citing H.Rep No. 576, 100^th^ Cong., 2d Sess. 548 (1988) at
    550).

[^2]: This differs from toys containing light bulbs used merely to
    illuminate parts of the toys, such as eyes (in the case of animals)
    or headlights (in the case of vehicles). *See* New York Letter
    Ruling (NY) D81433, dated September 18, 1998; NY 875247, dated July
    8, 1992; NY 873311, dated April 28, 1992; and NY 862653, dated May
    16, 1991.

[^3]: CBP has also consistently held that with composite goods
    consisting of flashlights and metal keychains, the flashlights
    impart the goods with their essential character. For instance, in HQ
    959473 (April 8, 1997), CBP held that a flashlight with a key ring
    is not subordinate to the key ring for purposes of determining
    essential character and is classifiable in heading 8513, HTSUS. In
    so holding, CBP noted that the flashlight primarily contributed to
    how the article will be used and that the flashlight imparts the
    essential character to the article. *See also* HQ 966409, dated May
    11, 2004.