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HQ 962913




October 13, 2000

CLA-2 RR:CR:GC 962913 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 4602.90.00; 9208.10.00

Mr. Ed Jordan,
Expeditor’s International of Washington, Inc. 601 North Nash Street
El Segundo, CA 90245

RE: Musical Pillow 6 Pack-Assortment

Dear Mr. Jordan:

This is in regard to your letter dated September 22, 1998, to the Director, National Commodity Specialist Division, New York, in which you requested a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), as to the classification of a Musical Pillow 6 Pack-Assortment, part # 6PK-705, on behalf of Noel Joanna, Ltd. Your letter was referred to this office for reply. We regret the delay.

FACTS:

The “Musical Pillow 6 Pack-Assortment” (part #6PK-705), a sample of which was submitted, is an assortment of six square pillows contained in a plastic basket secured by plastic wrap and steel wire supports.

Measuring 6” by 4.5” by 3” and edged with 1.5” of ruffled trim, each pillow has printed illustrations which show childlike scenarios and sayings such as “Nighty, Night” and “ShhBaby Sleeping” on 100% cotton front and 65%/35% polyester back panels. Each pillow contains 100% polyester fiberfill and a turnkey musical mechanism which plays “Brahms Lullaby”.

The pillow assortment is packed in shrink-wrapped plastic in a basket which measures approximately 15” long x 7” wide x 2.5” deep and surrounded by shrink-wrap plastic. The basket is composed of a framework of plastic covered metal wire and with the sides and rim additionally covered with a tubular plastic strip measuring 9 mm in apparent width.

The pillows serve as soothing sound for a child in its crib or nursery. You assert that the pillows are marketed to be sold along with other accessories for children.

ISSUE:

Whether the subject Musical Pillows are classifiable as music boxes within subheading 9208.10.00, HTSUS, or as pillows of cotton within subheading 9404.90.10, HTSUS.

Whether the Musical Pillow 6-Pack Assortment is classifiable as a set put up for retail sale under GRI 3(b).

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:

4602.90 Other

9208 Music boxes, fairground organs, mechanical street organs, mechanical singing birds, musical saws and other musical instruments not falling within any other heading of this chapter; decoy calls of all kinds; whistles, call horns and other mouth-blown sound signaling instruments:

9208.10.00 Music boxes

9208.90.80 Other

9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:

9404.90 Other:
Pillows, cushions and similar furnishings:

9404.90.10 Of cotton......................(369)

9404.90.20 Other

You assert that the subject goods may function as a pillow. We do not agree. Although they are similar to the decorative pillows in HQ 087316,dated July 9, 1990, they are not classifiable as pillows in heading 9404, HTSUS, (notwithstanding their resemblance to a pillow) as their size does not provide adequate neck and head support. In addition, because the musical mechanism is not removable from the pillow, it is not soft as a pillow. In HQ 087316 (which was revoked by HQ 964150, dated September 26, 2000), Customs held decorative pillows such as a “ring bearer” pillow, a “baby sleeping sign” pillow, and a “tooth fairy” pillow were not classifiable within heading 9404, HTSUS.

In the Merriam-Webster’s Collegiate Dictionary, the term “music box” is defined as a container enclosing an apparatus that reproduces music mechanically when activated by clockwork. Id. at 767 (10th Ed.) In the instant case, the subject goods contain a mechanized music box which plays tunes and is incorporated in a case. The HTSUS provides eo nomine for “music boxes” in heading 9208, HTSUS.

The ENs for 9208, HTSUS, categorizes music boxes as musical instruments which are precluded from classification in any other heading of this chapter. It states, in pertinent part, that music boxes:

“[c]onsist of small mechanical movements playing tunes automatically, incorporated into boxes or various other containers. The main component is a cylinder set with pins (according to the notes of the tune to be played); on rotating, the pins contact metal tongues arranged like the teeth of a comb, causing them to vibrate and produce the notes. The components are mounted on a plate and the cylinder is rotated either by a spring-operated (clockwork) motor, which is wound with a key, or directly by a handle. In some types, the cylinder may be replaced by a sheet-metal disc made on the hill and dale principle.

Articles which incorporate a musical mechanism but which are essentially utilitarian or ornamental in function (for example, clocks, miniature wooden furniture, glass vases containing artificial flowers, ceramic figurines) are not regarded as musical boxes within the meaning of this heading. These articles are classified in the same headings as the corresponding articles not incorporating a musical mechanism.”

Although it is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS, we do not find the ENs to be dispositive regarding the classification of ornamental music box merchandise. EN 92.08 provides where a music box possesses essentially an ornamental or utilitarian function, it is excluded from classification as a music box in heading 9208, HTSUS. However, as set forth in HQ 958543 dated June 17, 1996, (published in the Customs Bulletin on July 3, 1996, Vol. 30, No. 27), Customs follows a more liberal interpretation of the tariff term ‘music box’ as determined in Pukel v. U.S., 60 Cust. Ct. 672, C.D. 3497 (1968) and Amico v. U.S., 66 CCPA 5 (1978).

The subject goods are similar to the dancing figurine music box in Amico. Both items serve a purpose for the user. In the case of the subject goods, they provide soothing music in the form of an attractive pillow to an infant. The dancing figurine music box, which played waltz music in Amico, was marketed to teenage girls. It simulated appropriate romantic motions related to the waltz music. In both cases, the goods are “subordinate and incidental to the function of the music box”. If both were alone, the musical mechanism would be unattractive and of “little consumer appeal”. See Amico at 9.

In Pukel, the court interpreted the term ‘music box’ in item 725.50, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to subheading 9208.10.00), as a small mechanical movement playing tunes automatically, which is incorporated into a box, case or cabinet. While the instant pillows contain a music box, the musical mechanism is enclosed and surrounded by polyester fiberfill and fabric which, if the term “container” is viewed liberally, the music box definition is satisfied.

Although Pukel is a TSUS case, it has HTSUS implications. The Omnibus Trade Act of 1988 provides that earlier tariff decisions must not be disregarded in applying the HTSUS. Rather, on a “case by case basis, prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. “ H. Rep. No. 100-576, 100th Cong., 2d Sess. 548,550 (1988).

In this instance the ENs are not dispositive. Rather we find that the HTSUS and TSUS rulings as well as the court cases to be persuasive. The main purpose of a music box is to entertain by playing music. An ornamental article which otherwise meets the music box requirements remains classifiable under heading 9208, HTSUS.

Therefore, we find an ornamental music box (which meets the music box requirements) is classifiable under heading 9208, HTSUS. See also HQ 955574, dated June 3, 1994 (classifying a music box with ceramic seesaw Santa). Therefore, the pillow assortment is classifiable as a GRI 1 music box within heading 9208, specifically subheading 9208.10.00, HTSUS.

We must now determine whether the pillow assortment and basket together constitute a composite good or a GRI 3b set. GRI 3(b) specifically states:

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.

Regarding composite goods, EN (IX) to GRI 3(b) states in pertinent part that:

“Composite goods [which] are made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.” [emphasis added].

GRI 3(b) applies in cases where composite goods are either: (1) attached to one another so as to form a whole; or (2) those with separable components if they are adapted to each other, are "mutually complementary," and would “not normally be offered for sale in separate parts.” EN IX to GRI 3(b) provides examples of composite goods below:

1) Ashtrays consisting of a stand incorporating a removable ash bowl;

Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.

Unlike the mutually complementary components in the ashtray and spice rack, the basket and pillow assortment have independent functions and are not dedicated to fulfilling a single purpose. Although each pillow front has a different design, all play the same tune. These pillows are most likely sold individually. The basket is probably for in-store display purposes only. It is common to see baskets sold empty or filled with other gift items similar to the size of the pillows. Based on the subject merchandise’s failure to meet the requirements outlined above, we do not find the pillows and basket to be a composite good as provided by GRI 3(b). See also HQ 958754 dated May 3, 1996 (stating in pertinent part, “the phrase ‘would not normally be sold in separate parts’ does not refer to how the components are actually marketed. Rather, it pertains to whether the components would normally or principally be sold independent of one another”.)

Although the pillows and basket are not composite goods, it is possible that they may be classifiable as a set ‘put together for retail sale’ pursuant to GRI 3(b). Explanatory Note (X) to GRI 3(b) provides, in pertinent part, that:

[f]or the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings...;
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).

While the basket and pillows satisfy requirement (a), they fail to satisfy requirements (b) and (c). With requirements (b) and (c), we find the pillow and basket together do not meet a need or carry out a specific activity, nor are they put up in a manner suitable for retail sale directly to users. The basket, with the manufacturer’s logo on the front, is designed to display the selection of pillows from which the consumer is likely to select one to purchase. We do not believe that the consumer is likely to buy all six pillows in the basket. Therefore, the basket and the pillows cannot be considered a set under GRI 3(b). Rather, they must be classified individually, each in its own appropriate heading.

The pillows and basket are neither composite goods nor a set under GRI 3(b). However, consideration was given as to whether the basket may be classifiable with the pillow assortment pursuant to GRI 5. GRI 5 provides, in pertinent part, for:

“[C]amera cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended.”

Although the basket has dividers to contain the subject pillows, it is not of a kind normally sold with such articles. See EN (I)(4) to GRI 5(a). Unlike any of the named exemplars in GRI 5, HTSUS, the subject basket belongs to that class or kind of products which are often sold individually and which are principally used for display and storage of a variety of items. Based on the aforementioned reasons, we do not find that the basket is classifiable with the pillow assortment as a container pursuant to GRI 5. The basket is classifiable in subheading 4602.90.00, HTSUS, which provides for “otherbasketwork, wickerwork and other articles.” See also HQs 964150 and 964151 both dated September 26, 2000, for similar determinations.

HOLDING:

Under the authority of GRI 1, the subject musical pillows are provided in heading 9208, HTSUS, and are classifiable in subheading 9208.10.00, HTSUS. The basket is classifiable in subheading 4602.90.00, HTSUS.

Sincerely,

John Durant, Director

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