CLA-2 CO:R:C:F 953536 GGD
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.
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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
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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
Commercial Rulings Division