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HQ 952643

January 11, 1993

CLA-2 CO:R:C:F 952643 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.50.0020

Ms. Michele Dunkle
Harper Robinson & Co.
810-R Oregon Avenue
Linthicum, Maryland 21090

RE: Request for Reconsideration of binding ruling DD 875778, dated July 14, 1992, concerning the classification of five musical toy items imported from China and Singapore.

Dear Ms. Dunkle:

This letter is in response to your request for a reconsideration of binding ruling DD 875778, dated July 14, 1992, regarding the tariff classification of five musical toy items to be imported from China and Singapore.

FACTS:

In DD 875778, the Customs District Director in San Diego, California, classified your five samples of toy musical items in subheading 9503.90.7030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other toys having a spring mechanism, dutiable at the general column one rate of duty of 6.8 percent ad valorem.

The five items are described as follows:

1. "Peek-a-boo Ernie" is a plastic toy consisting of a representation of a Sesame Street character with an internal music box. A clockwork spring operates the music box as well as makes the arms, feet, ears, and eyeballs of the character move back and forth or up and down. It is designed to be attached to a baby's crib. The item is approximately five inches in height and three and one-half inches wide.

2. "Musical Toy Radio", item 8814R, is a plastic toy radio with internal music box, with the bas-relief form of the Big Bird
character on the front. A spring mechanism knob on the front operates the music box and rotates a printed display of Sesame Street characters through a dial-like window. The item is approximately five inches wide and six inches high.

3. "Musical Portable Toy Radio", item 8926, is a plastic toy radio with internal music box, with the face of the Big Bird character on the front. A spring mechanism knob on the front operates the music box and causes the character's eyes to move back and forth. The item is approximately eight inches high and four inches wide.

4. "Musical Toy Clock", item 8927, is a plastic toy clock on which is printed the Big Bird character. The clock's "hands" are the character's wings. A music box is mounted inside the clock, and a spring mechanism knob on the front operates the music box and causes the hands on the clock to rotate around the dial. The clock does not keep time. The item is approximately five inches wide and four inches high.

5. "Musical TV", item 6333, is a toy plastic "television" with internal music box and non-working toy clock. When a spring mechanism "channel knob" on the front is wound, the music box operates and a printed illustration of boats, trains, etc. moves in a loop across the screen. The item is approximately ten inches wide and seven inches high.

ISSUE:

Whether the five toy musical items should be classified as music boxes or toys?

LAW AND ANALYSIS:

Classification under the 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 this instance, the items can be classified by reference to GRI 1. GRI 1 necessitates classification in heading 9503, HTSUSA, the provision for toys and not in heading 9208, HTSUSA, the provision for music boxes. 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 that 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 five items described herein are therefore classified as toy musical boxes.

HOLDING:

The items marketed as Peek-a-boo Ernie, Musical Toy Radio, Musical Portable Toy Radio, Musical Toy Clock and Musical TV 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 items are dutiable at the general column one rate of duty of 6.8 percent ad valorem.

This notice should be considered a modification of DD 875778, although we note that the rate of duty is not affected. This ruling is not to be applied retroactively to DD 875778 (19 CFR 177.9(d)(2)) and will not, therefore, affect past
transactions of your merchandise. However, for the purposes of future transactions in the affected merchandise, DD 875778 will not be valid precedent.

Sincerely,

John Durant, Director

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