HQ 0952281 - Reconsideration of New York Ruling Letter 832794, dated November 28, 1988; "Peek-a-boo Ernie" and "Mickey Mouse" musical camera classified in the provision for toys rather than the provision for music boxes - United States International Trade Commision Rulings

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HQ 952281
September 25, 1992

CLA-2 CO:R:C:F 952281 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.50.0020

Mr. H.W. Ebert
H.W. Ebert Company
45 John St.
New York, N.Y. 10038

RE: Reconsideration of New York Ruling Letter 832794, dated November 28, 1988; "Peek-a-boo Ernie" and "Mickey Mouse" musical camera classified in the provision for toys rather than the provision for music boxes

Dear Mr. Ebert:

The purpose of this letter is to modify New York Ruling Letter (NYRL) 832794, dated November 28, 1988, which provided the tariff classification for inter alia, two items, one known as "Mickey Mouse" musical camera and the other known as a musical "Peek-a-boo Ernie." NYRL 832794 also provided tariff classifications for two other items which are not affected by this modification.

FACTS:

The "Mickey Mouse" musical camera, item 7914, measures one and one-half inches by three inches by five inches and has an outer body construction of plastic. The rectangular article has a wide knob simulating the front lens area with a picture of "Mickey Mouse" on the knob, a view hole, a "Donald Duck" head where the film advance area is, a push button on the top and a plastic strap handle. Decorating the front of the article are decals simulating the adjustment knobs on a camera and molded in musical notes. When the front knob is twisted and the top button pushed, a tune plays. As it is playing, the duck's head on the top revolves to the music.

The "Peek-a-boo Ernie", item 8610, is a two and one-half by five inch rectangle with a replica of the "Sesame Street" character known as "Ernie." A wind-up switch in the back of the
item is connected to a standard clockwork mechanism musical movement. The article has hands, feet and ears attached to the one dimensional form of the item. When the article is wound up, the hands and feet move in and out in time to the music and the ears move up and down. The packaging indicates that the article in intended to be hung on or about a crib or held in front of an infant for sight and sound play amusement. It is designed to amuse children who will probably be too young to manipulate it themselves. An adult or other older person will wind the mechanism so that the infant will be stimulated by the movement, color and sound.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

In NYRL 832794, the "Mickey Mouse" musical camera and "Peek- a-boo Ernie" were classified in subheading 9208.10.0000, HTSUSA, the provision for music boxes, dutiable at a rate of 3.2 percent ad valorem. Upon further examination of the Chapter Notes and EN's to chapters 92 and 95, Customs has reevaluated its position and determined that the subject articles should be classified in heading 9503, HTSUSA, the provision for toys.

Classification in heading 9503 can be accomplished by reference to GRI 1. The EN's to Chapter 95 indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase "designed for the amusement of" is generally understood to indicate the use of an article will be a factor when classification in Chapter 95 is being considered.

Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that, absent language to the contrary, the following applies:

A tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong and the controlling use is the principal use.

It is our determination that these items are designed for amusement and will be principally used for amusement.

Legal Note 1(c) to Chapter 92 states that the chapter does not cover "Toy instruments or apparatus (heading 9503)." EN 95.03(A)(11) states that heading 9503 includes "Toy musical instruments (pianos, trumpets, drums, gramophones, mouth organs, accordions, xylophones, musical boxes, etc.)"(emphasis added). The "Mickey Mouse" and "peek-a-boo" articles are therefore classified as toy musical boxes.

HOLDING:

The merchandise known as "Mickey Mouse" musical camera, item number 7914 and musical "Peek-a-boo Ernie", item number 8610 are classified in subheading 9503.50.0020, HTSUSA, the provision for toy musical instruments and apparatus and parts and accessories thereof, instruments and apparatus. The applicable duty rate is 6.8 percent ad valorem.

This notice should be considered a modification of NYRL 832794 insofar as the "Mickey Mouse" musical camera and "Peek-a- boo Ernie" are concerned; the other classifications effected in NYRL 832794 are unchanged. This ruling is not to be applied retroactively to NYRL 832794 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your merchandise under that ruling. However, for the purposes of future transactions in the affected merchandise, NYRL 832794 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director

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