CLA-2 CO:R:C:F 952281 STB
Mr. H.W. Ebert
H.W. Ebert Company
45 John St.
New York, N.Y. 10038
RE: Reconsideration of New York Ruling Letter 832794,
dated November 28, 1988; "Peek-a-boo Ernie" and "Mickey
Mouse" musical camera classified in the provision for toys
rather than the provision for music boxes
Dear Mr. Ebert:
The purpose of this letter is to modify New York Ruling
Letter (NYRL) 832794, dated November 28, 1988, which provided
the tariff classification for inter alia, two items, one known as
"Mickey Mouse" musical camera and the other known as a musical
"Peek-a-boo Ernie." NYRL 832794 also provided tariff
classifications for two other items which are not affected by
this modification.
FACTS:
The "Mickey Mouse" musical camera, item 7914, measures one
and one-half inches by three inches by five inches and has an
outer body construction of plastic. The rectangular article has
a wide knob simulating the front lens area with a picture of
"Mickey Mouse" on the knob, a view hole, a "Donald Duck" head
where the film advance area is, a push button on the top and a
plastic strap handle. Decorating the front of the article are
decals simulating the adjustment knobs on a camera and molded in
musical notes. When the front knob is twisted and the top button
pushed, a tune plays. As it is playing, the duck's head on the
top revolves to the music.
The "Peek-a-boo Ernie", item 8610, is a two and one-half by
five inch rectangle with a replica of the "Sesame Street"
character known as "Ernie." A wind-up switch in the back of the
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item is connected to a standard clockwork mechanism musical
movement. The article has hands, feet and ears attached to the
one dimensional form of the item. When the article is wound up,
the hands and feet move in and out in time to the music and the
ears move up and down. The packaging indicates that the article
in intended to be hung on or about a crib or held in front of an
infant for sight and sound play amusement. It is designed to
amuse children who will probably be too young to manipulate it
themselves. An adult or other older person will wind the
mechanism so that the infant will be stimulated by the movement,
color and sound.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (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.
In NYRL 832794, the "Mickey Mouse" musical camera and "Peek-
a-boo Ernie" were classified in subheading 9208.10.0000, HTSUSA,
the provision for music boxes, dutiable at a rate of 3.2 percent
ad valorem. Upon further examination of the Chapter Notes and
EN's to chapters 92 and 95, Customs has reevaluated its position
and determined that the subject articles should be classified in
heading 9503, HTSUSA, the provision for toys.
Classification in heading 9503 can be accomplished by
reference to GRI 1. 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 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:
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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 "Mickey Mouse" and "peek-a-boo" articles are therefore
classified as toy musical boxes.
HOLDING:
The merchandise known as "Mickey Mouse" musical camera, item
number 7914 and musical "Peek-a-boo Ernie", item number 8610 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 applicable duty rate is
6.8 percent ad valorem.
This notice should be considered a modification of NYRL
832794 insofar as the "Mickey Mouse" musical camera and "Peek-a-
boo Ernie" are concerned; the other classifications effected in
NYRL 832794 are unchanged. This ruling is not to be applied
retroactively to NYRL 832794 (19 CFR 177.9(d)(2)) and will not,
therefore, affect past transactions for the importation of your
merchandise under that ruling. However, for the purposes of
future transactions in the affected merchandise, NYRL 832794 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 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