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HQ 953536


July 13, 1993

CLA-2 CO:R:C:F 953536 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.50.0020

Ms. Lisa M. McNair
Shelcore, Inc.
Post Office Box 1710
Piscataway, New Jersey
08855-1710

RE: Modification of NYRL 858509; "Musical Radio;" Not Music Box

Dear Ms. McNair:

This letter is in further response to your inquiry of November 29, 1990, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUSA), of an article identified as a "Musical Radio," imported from China by Shelcore, Inc. A sample was submitted with your original inquiry.

FACTS:

In New York Ruling Letter (NYRL) 858509, dated December 28, 1990, Customs classified the item under subheading 9208.10.0000, HTSUSA, which provides for music boxes. The applicable duty rate for that subheading is 3.2 percent ad valorem. We have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

The article consists of a small yellow case with a red windup button and a blue switch for turning the musical mechanism on and off. When wound and activated, a tune plays repeatedly while the red button turns and the eyes of an animal figure move from side to side.

ISSUE:

Whether the item should be classified as a music box, or as a toy.

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.

Among other items, heading 9208, HTSUSA, provides for music boxes. Note 1(c) to Chapter 92, states that the chapter does not cover "[t]oy instruments or apparatus (heading 9503)." The EN to Chapter 92 states, in part, that the chapter also excludes:

"[m]usical instruments which can be clearly recognised as toys because of the character of the material used, their rougher finish, the lack of musical qualities or by any other characteristics (Chapter 95). Examples include certain...musical boxes."

Heading 9503, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of Chapter 95. Although the term "toy" is not defined in the tariff, the EN to Chapter 95 indicates that a toy is an article designed for the amusement of children or adults. Explanatory Note (A)(11) to heading 9503 states that the heading includes "[t]oy musical instruments (...musical boxes, etc.)."

It is apparent that the "musical radio" is an apparatus designed for the amusement of children, which lacks the quality characteristics of music boxes that are other than toys. In light of the types of toy instruments and apparatus that are
excluded from Chapter 92, and included in heading 9503, it is our determination that the article is classified in subheading 9503.50.0020, HTSUSA.

HOLDING:

The article identified as a "Musical Radio" is classified under subheading 9503.50.0020, HTSUSA, the provision for "Other toys...and accessories thereof: Toy musical instruments and apparatus and parts and accessories thereof, Instruments and apparatus." The general column one duty rate for this subheading is 6.8 percent ad valorem.

This notice should be considered a modification of NYRL 858509 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 858509 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 858509 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, at your discretion, 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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