CLA-2 CO:R:C:T 951408 HP

Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49TH Street
New York, NY 10017

RE: NYRL 870787 modified. Packing; shipping; cases; boxes; crates; decorative; furniture; furnishing; principal; use; fugitive; marketing; cassette

Dear Mr. Murphy:

This is in reply to your letter of March 24, 1992. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of wooden cassette toys, produced in numerous countries. Please note your reference 92-3088-5(1)I, Great American Audio Corporation (GAAC).

FACTS:

The merchandise at issue is described by you as follows:

... four cassette tapes containing recordings for the amusement of a baby or young child and a wood figure [(in various shapes)] which acts as a holder for the tapes. The wood figures resemble a rocking horse, reindeer, elephant, toy cars and trucks, sleighs, cradles, and Noah's Ark. The cassette tapes are secured to the wooden holder via a paper band. The tapes and holder are packaged for retail sale in a cardboard display container. [The wooden holders measure approximately 7«" long x 3¬" wide. The wooden holders have a 2 " x 4¬" opening at the top where the cassettes are inserted.]

Presently, GAAC sells the following versions: Jingle Bells, Traveling Fun, Jungle Book, Lullaby Cradle, Truckload of Fun, Sweet Dreams, Noah's Ark, Sing- A-Long Train, Lullaby and Good Night, Rock-A-Bye Baby, Merry Christmas Sled, and The Little Yellow Learning Bus. A sample of the Rock-A-Bye Baby wood cassette toy accompanies this submission for your reference.

The wooden cassette holder will be produced in the Philippines, Thailand, China, Hong Kong or Malaysia from materials from those countries. The cassettes will be produced in the United States, China or Hong Kong. The final retail package will be assembled in the United States, China or Hong Kong.

On February 26, 1992, [sic.] the New York Region issued [NYRL 870787, classifying] the wood cassette holders under HTS heading 4415.10.9000, which provides for other cases, boxes, crates, drums and similar packings of wood. * * * Customs separately classified the tapes under HTS heading 8524.21.3040, which provides for magnetic tapes of a width not exceeding 4 millimeters[,] other recordings.

You disagree with NYRL 870787's classification of the wooden cassette holder, believing it should be placed under subheading 4420.90.8000, HTSUSA, as other wooden articles of furniture.

ISSUE:

Whether the wooden cassette holder is considered a decorative article or a packing box under the HTSUSA? LAW AND ANALYSIS:

Heading 4415, HTSUSA, provides for, inter alia, packing cases, boxes, crates, drums and similar packings of wood. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading states:

This part of the heading includes:

(1) Packing cases and boxes with solid sides, lids and bottoms, used for general packing and transport purposes.

(2) Crates, fruit or vegetable boxes, egg trays and other containers with slatted sides and open tops (including those of a kind used for the transport of glassware, ceramic products, machinery, etc.).

(3) Boxes made of sliced or peeled wood (but not those of plaited wood) of a kind used for packing cheese, pharmaceutical products, etc.; match-boxes (including those with a striking surface) and conical open containers for marketing butter, fruit, etc.

(4) Drums and barrel-shaped containers, not of the kind made by coppers, such as are used for the transport of dry colours, chemicals, etc.

These containers may be presented without a lid ( open containers such as cases, crates, etc.). They may be unassembled or partly assembled....

You have argued that the items enumerated in this heading are commercial packings such as fruit or vegetable boxes of a type used for general packing and transport purposes ...[and] designed to be the outermost shipping containers for other merchandise. Your merchandise, while it does hold cassettes,

is primarily intended as a decorative holder to appeal to consumers and amuse children. The cassette holders themselves must be packed in cardboard containers prior to retail sale and are clearly not designed to function as shipping crates.

NYRL 870787 based its conclusion upon the premise that while some packing cases of heading 4415, HTSUSA, may be manufactured with decorative shapes and designs intended to attract consumer attention for marketing purposes, the examples enumerated in the Explanatory Notes are all used to pack and often market merchandise. This is correct. Extending this analysis to the merchandise at issue, however, improperly broadens the intended scope of this heading. As evidenced by the language general packing and transport, packing cases, boxes and crates of this heading are industrial or commercial packing crates and containers designed to be principally shipping and marketing containers for other merchandise. The cassette holders, themselves packed in cardboard holders prior to retail sale, are neither intended to be nor are principally used as packing and marketing crates. The cassette holders are also used throughout the life of the cassettes as decorative storage containers. While the decorative function is clearly secondary, it is not fugitive. NYRL 870787's classification of these multi-purpose containers as general packing and transport, packing cases, boxes and crates was therefore incorrect.

As an alternative to heading 4415, HTSUSA, you have suggested that classification as small wooden articles of furniture, under heading 4420, would be appropriate. See, e.g., NYRL 863185 of May 21, 1991 (classifying cassette, video and compact disc storage racks, also presented to consumers wrapped in cardboard, as other articles of wooden furniture). We agree. The instant merchandise is clearly intended to be displayed on other furniture. Neither the article's design nor its retail sale accompanied by the cassettes to be stored distinguishes it's cassette storage function from that of the above-cited racks. Therefore, classification in heading 4420, HTSUSA, is correct.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 4420.90.8000, HTSUSA, as wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94, other, other. Pursuant to 502(a)(3) of the Trade Act of 1974 (19 U.S.C. 2462(a)(3)) and General Note 3(c)(ii)(A), HTSUSA, one or more of the countries you cited above has been designated a beneficiary developing country for the purposes of the Generalized System of Preferences (GSP), provided for in Title V of the Trade Act of 1974, as amended (19 U.S.C. 2461 et seq.). Provided all applicable requirements are met under the GSP program, this merchandise may be entered free of duty. Otherwise, the applicable rate of duty is 5.1 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying NYRL 870787 of February 20, 1992, pursuant to 19 C.F.R. 177.9(d)(1) (1989), to reflect the above classification effective with the date of this letter. This letter is not to be applied retroactively to NYRL 870787 (19 C.F.R. 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, including that for which the present classification is requested, NYRL 870787 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 the release of HRL 951408 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director
Commercial Rulings Division