CLA-2 CO:R:C:F 952643 STB
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
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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.
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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
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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
Commercial Rulings Division