HQ 958543 - Modification of HRL 950042; Porcelain bunny rabbit figurines mounted on music box: EN 92.08; HRLs 086166, 087132, 953049, 952615, 952595, 952604, 952607, 952609, 082738, 087316, 953536, 952643, 955574, 081657 and 072786; Bureau Letter 491.62; Pukel v. U.S., Amico v. U.S. - United States International Trade Commision Rulings

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HQ 958543

June 17, 1996

CLA-2 RR:TC:MM 958543 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9208.10.00

Mr. Jason Louis, President
Acmate Supply
1977 Quincy Court
Glendale Heights, IL 60139

RE: Modification of HRL 950042; Porcelain bunny rabbit figurines mounted on music box: EN 92.08; HRLs 086166, 087132, 953049, 952615, 952595, 952604, 952607, 952609, 082738, 087316, 953536, 952643, 955574, 081657 and 072786; Bureau Letter 491.62; Pukel v. U.S., Amico v. U.S.

Dear Mr. Louis:

In Headquarters Ruling Letter (HRL) 950042 dated November 18, 1991, resolving a difference in classification, a porcelain figurine of bunny rabbits and an egg mounted on a music box was determined to be classifiable, together with other articles, under subheading 6913.10.50, Harmonized Tariff Schedule of the United States (HTSUS), provides for statuettes and other ornamental ceramic articles of porcelain or china. After review of HRL 950042, we now believe that the porcelain figurine music box is classifiable under subheading 9208.10.00, HTSUS, which provides for music boxes.

FACTS:

The article is a porcelain figurine of two bunny rabbits and an egg mounted on a music box. It measures 3«" high.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation of HRL 950042 was published on May 8, 1996, in the Customs Bulletin, Volume 30, Number 19. No comments were received in response to this notice.

ISSUE:

Is the porcelain figurine of two bunny rabbits and an egg mounted on a music box classifiable as a porcelain statuette under heading 6913, HTSUS, or as a music box under heading 9208, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." For the purposes of this rule, the headings under consideration are as follows:

6913 Statuettes and other ornamental ceramic articles.

9208 Music boxes, fairground organs, mechanical street organs, mechanical singing birds, musical saws and other musical instruments not falling within any other heading of this chapter; decoy calls of all kinds; whistles, call horns and other mouth-blown sound signaling instruments.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 92.08 (pgs. 1561-1562) states, in pertinent part, that music boxes:

...consist of small mechanical movements playing tunes automatically, incorporated into boxes or various other containers. The main component is a cylinder set with pins (according to the notes of the tune to be played); on rotating, the pins contact metal tongues arranged like the teeth of a comb, causing then to vibrate and produce the notes. The components are mounted on a plate and the cylinder is rotated either by a spring-operated (clockwork) motor which is wound with a key or directly by a handle. In some types, the cylinder may be replaced by a sheet-metal disc made on the hill and dale principle...

...Articles which incorporate a musical mechanism but which are essentially utilitarian or ornamental in function (for example, clocks, miniature wooden furniture, glass vases containing artificial flowers, ceramic figurines) are not regarded as musical boxes within the meaning of this heading. These articles are classified in the same headings as the corresponding articles not incorporating a musical mechanism...

EN 92.08 indicates that a music box that is either essentially utilitarian or ornamental in function is excluded from classification as a music movement under heading 9208.

Based on a series of rulings and the language of the ENs, Customs has consistently held that articles with both a utilitarian and music box function are excluded from classification under heading 9208, as music boxes. See: Headquarters Ruling Letter (HRL) 086166 dated April 9, 1990, which excluded articles containing a music box/storage compartment from classification as music boxes. See also: HRLs 087132 dated August 12, 1992; 953049 dated February 17, 1993, and 952615, 952595, 952604 , 952607, and 952609 all dated December 2, 1992, which excluded dolls containing music boxes from classification as music boxes. Finally see: 082738 dated February 8, 1990; 087316 dated July 7, 1990; 953536 dated July 13, 1993, and 952643 dated January 11, 1993, all excluding various toys from classification as music boxes.

A strict reading of the ENs indicates that a music box which is essentially ornamental in function is excluded from classification as a music box under heading 9208. However, Customs believes that the ENs are not dispositive concerning the classification of music boxes which are essentially ornamental in function. Rather, Customs practice is to classify such music boxes under heading 9208, and item 725, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to heading 9208). This practice is based on two court cases which have ruled on the scope of the music box provision.

Pukel v. United States, 60 Cust. Ct. 672, C.D. 3497 (1968), defined a music box as a small mechanical movement playing tunes automatically, which is incorporated into a box, case or cabinet. The court stated that the musical mechanism by itself is not attractive and has little consumer appeal unless contained in an attractive box. For marketing purposes, the box is most often appropriately designed to conform to the song of the mechanism. Amico v. United States, 66 CCPA 5, C.A.D. 1214 (1978), held that dancing figurines enclosed in a plastic base containing a musical mechanism playing waltz tunes were classified as music boxes because the function of the figurines were solely that of design and appearance and as such were subordinate and incidental to the function of the music box. According to the court, the figurines served no function other than being decorative.

Additionally, the principles expressed in these two court cases have been applied in several Customs ruling letters. See: HRL 955574 dated June 3, 1994, classifying a music box with a ceramic see-sawing Santa; HRL 081657 dated December 1, 1988, classifying a ceramic carousel horse mounted on a wooden music box; HRL 072786 dated September 21, 1983, classifying two figures, a clown and a boy, derived from a Norman Rockwell Saturday Evening Post cover mounted on a music box.

Customs believes that in this instance the ENs, are not dispositive. Rather, we find the HTSUS and TSUS rulings as well as the court cases to be persuasive. The main purpose of a music box is to entertain by playing music. Any ornamental article whose primary appeal is a music box feature and which otherwise meets the music box requirements, remains classifiable under heading 9208. Therefore, the two bunny rabbits and egg figurine mounted on a music box is classifiable under heading 9208, specifically, subheading 9208.10.10, HTSUS, as a music box. HOLDING:

HRL 950042 is modified. The bunny rabbits and egg figurine mounted on a music box is classifiable under subheading 9208.10.10, HTSUS, as a music box with a column one duty rate of 3.2% ad valorem.

In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Tariff Classification Appeals

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