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HQ 963650




October 13, 2000

CLA-2 RR:CR:GC 963650 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9208.10.00

Ms. Despina Keegan,
Serko & Simon, LLP
One World Trade Center, Suite 3371
New York, NY 10048

RE: Musical pillows

Dear Ms. Keegan:

This is in regard to your letter dated September 22, 1999, to the Director, National Commodity Specialist Division, New York, in which you requested a tariff classification ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), as to the classification of three musical pillows, on behalf of your client, Russ Berrie and Company, Inc. Your letter was referred to this office for reply. We regret the delay.

FACTS:

According to your letter, the three pillows have a textile loop and are primarily intended to be hung in a child’s crib or playpen but may be used to amuse or entertain infants or toddlers in their carriage or any other setting.

The first pillow, identified as item #100295, is a five pointed star which measures approximately nine inches across. It is stuffed with foam rubber and contains a wind-up mechanical musical mechanism that when wound plays the tune “Twinkle Twinkle, Little Star”. A sample was provided.

The second pillow, identified as item #100599, is a white rectangle shaped pillow, which measures 7.5 “(l) x 5.5” (h). It is stuffed with foam rubber and contains a wind-up mechanical musical mechanism that plays “Brahm’s Lullaby” tune. A sample was provided.

The third pillow, identified as item #100294, is a half-moon shaped musical pillow. It is stuffed with foam rubber and contains a wind-up mechanical musical mechanism that plays an unknown tune. No sample was provided.

ISSUE:

Whether the subject goods are classifiable as pillows as provided for in heading 9404, HTSUS, as music boxes within heading 9208, HTSUS, or as other toys and models within heading 9503, HTSUS.

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:

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:

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

Other

Other toys and models

In your letter, you assert that the subject goods are toys within subheading 9503.90.00 which provides for “otherother toys; reduced-size (“scale”) models and similar recreational models”, or in the alternative, as a music box within heading 9208, HTSUS.

We agree that the subject goods are not classifiable as pillows within heading 9404, HTSUS. 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.

However, we disagree that the subject goods are classifiable as toys within heading 9503.90.00, HTSUS. Although the term “toy” is not defined in the HTSUS, the ENs to Chapter 95 provide that toys are intended essentially for the amusement of persons (children and adults). In the instant case, the subject goods do not amuse. Rather, they play “Brahm’s Lullaby” and “Twinkle Twinkle, Little Star”, tunes which are intended to soothe and lull a child to sleep. Based on these facts, we cannot accept your position that the subject goods are classifiable as toys within heading 9503, 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, categorize 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 found in the Pukel v. U.S., 60 Cust. Ct. 672, C.D. 3497 (1968) and Amico v. U.S., 66CCPA 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.

Because the subject goods meet the definition of heading 9208, HTSUS, we find that they are classifiable as music boxes within subheading 9208.10.00, HTSUS. See also HQs 964150 and 964151 both dated September 26, 2000, for similar determinations. .

HOLDING:

Under the authority of GRI 1, the subject goods are provided in heading 9208, HTSUS, and are classifiable in subheading 9208.10.00, HTSUS.

Sincerely,

John Durant, Director

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