HQ 0955116 - Audio Sound Device; Sound Module; EN 85.43; Heading 9209; General Explanatory Note B to Chapter 92; HQs 953105, 950201, 089996, 088646 - United States International Trade Commision Rulings

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HQ 955116

October 8, 1993

CLA-2 CO:R:C:M 955116 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

Ms. Barbara O. Frennea
Customs House Brokers
80 St. Michael St., Suite 315
P.O. Box 673
Mobile, Alabama 36601-0673

RE: Audio Sound Device; Sound Module; EN 85.43; Heading 9209; General Explanatory Note B to Chapter 92; HQs 953105, 950201, 089996, 088646

Dear Ms. Frennea:

This is in response to your letter of September 15, 1993, on behalf of Rock A Bye Baby Inc., to the Area Director of Customs in New York, concerning the classification of an audio sound device under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and the sample submitted were referred to this office for a direct response.

FACTS:

The audio sound device is comprised of a rectangularly shaped white plastic housing, measuring approximately 2 and 1/2 inches in width by 4 inches in length and 1 inch in thickness. The front of the audio sound device has a speaker and an on/off knob. When the device is turned on, a pre-programmed digital integrated circuit produces intrauterine sounds to pacify a new born infant. After importation, the audio sound device will be incorporated into a stuffed animal such as a teddy bear. The audio sound device is powered by a 9 volt battery (not included).

ISSUE:

Is the audio sound device classifiable as a sound module or as a music box under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Parts or mechanisms for musical boxes or instruments are provided for under heading 9209, HTSUS. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. General Explanatory Note B to Chapter 92, page 1555, states that this chapter excludes electronic musical modules which are provided for in heading 8543, HTSUS. If the subject merchandise meets the definition of sound modules in heading 8543, HTSUS, then classification under heading 9209, HTSUS, would be inapplicable.

EN 85.43 (13), page 1403, states that heading 8543, HTSUS, includes:

[e]lectronic musical modules for incorporation in a wide variety of utilitarian or other goods, e.g. wrist watches, cups and greeting cards. These modules usually consist of an electronic circuit, a resistor, a loudspeaker and a mercury cell. They contain fixed musical programmes.

In HQ 953105, dated April 15, 1993, Customs held that a sound module which makes a "wolf whistle" is accurately described by EN 85.43(13) because the sound module contains a speaker, a cell and an electronic circuit. We further held in HQ 953105, that EN 85.43(13) covers all types of articles, even though not listed, so long as it incorporates a sound module. See HQ 089996, dated October 23, 1991; HQ 088646, dated May 3, 1991.

We find that the audio sound device, which produces intrauterine sounds, meets the definition set forth in EN 85.43(13) and the holding in HQ 953105, because it consists of a speaker, a 9-volt battery (in place of the mercury cell), an electronic circuit, and it is to be incorporated into stuffed animals such as teddy bears after importation. The subject merchandise is properly classifiable under subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. . .[o]ther machines and apparatus: [o]ther. . ." See also HQ 950201, dated November 15, 1991.

HOLDING:

The audio sound device is classifiable under subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. . .[o]ther machines and apparatus: [o]ther. . ." The general, column one rate of duty is 3.9 percent ad valorem.

Sincerely,

John Durant, Director

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