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HQ 961100




December 9, 1998

CLA-2 RR:CR:GC 961100 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.:9208.10.0000

Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman 245 Park Avenue, 33rd Floor
New York, New York 10167

RE: NYRL C80019 affirmed; a wind up music box with an incorporated glass water globe

Dear Mr. Murphy:

This is in reference to your November 11, 1997, and March 18, 1998, letters, on behalf of Noma Christmas, requesting reconsideration of New York Ruling Letter (NYRL) C80019 dated October 24, 1997, concerning, among other things, the classification of a wind up music box with an incorporated glass water globe under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination.

FACTS:

The subject article, identified as Model 77126, is a wind up music box with an incorporated glass water globe. The music box plays the Christmas carole "Deck the Halls." The glass water globe depicts "Winne the Pooh" characters in a Christmas scene. The headings under consideration are as follows:

9208 [m]usic 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

9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof

ISSUE:

Whether the wind up music box with an incorporated glass water globe is classifiable as a music box or a festive article.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

The tariff term "music box" is defined as "a small mechanical movement playing tunes automatically, which is incorporated into a box, case, or cabinet." Pukel v. United States 60 Cust. Ct. 672, C.D. 3497; 286 F. Supp. 317 (1968). As the subject article contains a small mechanical movement, plays tunes and is incorporated in a case, it meets this definition of a music box. However, counsel argues that the article can also be described as a festive article. We do not disagree. As was indicated in NYRL C80019, Model 77131 featured the identical article without the music box which was classified as a festive article. As the wind up music box with an incorporated glass water globe is described by both headings, it is not classifiable according to GRI 1.

GRI 3(a) states, in pertinent part, that:

When...goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description...

The Harmonized Commodity Description And Coding System Explanatory Notes (EN's) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN's provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the EN's should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN to GRI 3 states that:

(I) ...[t]hese methods operate in the order in which they are set out in the Rule. ... The order of priority is therefore (a) specific description; (b) essential character; (c) heading which occurs last in numerical order.

...(III) [t]he first method of classification is provided in Rule 3 (a), under which the heading which provides the most specific description of the goods is to be preferred to a heading which provides a more general description.

(IV) [i]t is not practicable to lay down hard and fast rules by which to determine whether one heading more specifically describes the goods than another, but in general it may be said that:

(a) [a] description by name is more specific than a description by class (e.g., shavers and hair clippers, with self-contained electric motor, are classified in heading 85.10 and not in heading 85.08 as electro-mechanical tools for working in the hand or in heading 85.09 as electro-mechanical domestic appliances with self-contained electric motor). [emphasis added]

(b) [i]f the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete. [emphasis added]

Applying this analysis to the subject article, the term "music box" describes this article by name and the term "festive article" describes it by the class of various articles to which it belongs. As the term "music box", not "festive article", more clearly identifies the subject article, the wind up music box with an incorporated glass water globe is classifiable as a music box, not a festive article.

Such a classification conclusion is consistent with the holding of Amico, Inc. v. United States, 66 CCPA 5, C.A.D. 1214; 586 F. 2nd 217, (1978) [hereinafter Amico]. In Amico the TSUS tariff headings under consideration were:

737 [t]oys, and parts of toys, not specially provided for:

737.80 [t]oys having a spring mechanism

725 [o]ther musical instruments:

725.50 [m]usic [b]oxes

The Court held that a music box, consisting of a music box mechanism in a clear plastic container incorporating miniature dancing figurines under a plastic dome on top of the container, was not "more than" a music box and therefore was classifiable as a music box, not a toy, for tariff purposes. In its analysis, the Court noted that "the function of the dancing couple...is solely that of design and appearance, and, as such, is subordinate and incidental to the function of the music box...." The Court determined the figurines' function by examining whether they served a separate commercial function and concluded they did not. Finally, the Court noted that it would be an error to place sole emphasis on a major selling feature, in this case the figurines, as a basis for applying the "more than" doctrine where the selling feature is incidental and ornamental only and has no commercial value or function of its own.

Applying this Amico analysis to the subject article indicates that it is classifiable as a music box. The "function" of Christmas figurines is solely that of design and appearance and is subordinate and incidental to the function of the music box. The Christmas figurines do not serve a separate commercial function or value of their own when combined with the music box. That aspect or design is being sold separately as a decorative article for its commercial value, as Model number 77131 and has rightfully been classified as a festive article. As the customer can purchase the identical article without a music box, Customs is left only to conclude that the customer must be purchasing the subject article because of its music box feature.

You argue that EN 92.08 indicates that the scope of the tariff term "music box" does not include articles which are essentially ornamental in function. EN 92.08, states, in pertinent part, that:

Musical boxes. These consist of small mechanical movements playing tunes automatically, incorporated into boxes or various other containers....

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....

We do not disagree with your reading of EN 92.08. However, the above provision exempts from classification in heading 9208 only "[a]rticles which incorporate a musical mechanism [and] which are essentially utilitarian or ornamental in function". The examples used in the EN make it clear that the utilitarian or ornamental function referred to is other than that of a music box. As demonstrated above, the article under consideration does not have such a utilitarian or ornamental function as its essential function. Therefore, we conclude that the EN does not preclude classification of the article in heading 9208 and, as noted above, application of the GRI's as well as an appellate court case support such a classification.

Finally you state that you believe the decision in Midwest of Cannon Falls, Inc. v. United States, 122 F. d. 1423 (Fed Cir 1997) (hereinafter Midwest), applies to the subject music boxes. Midwest addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles" by defining the word "ornament" and determined how to classify an article when it is described by both the festive heading and another one. In Midwest, a series of nutcrackers were determined to be described by both the festive articles heading (9505) and the doll heading (9502). The Court stated that "dolls" was an e.o. nomine provision and that "ornament" was a use provision. It then held that: "... a use heading is generally more specific that an e.o. nomine one." However, rather than adopting a rule for deciding between an e.o. nomine and a use provision under the HTSUS, the Court chose to determine that the 9505 classification was more specific based on "all the factors and circumstances."

We have preformed a similar analysis in this case. That is, we have compared the term "festive article" in heading 9505 to the term "music box" of heading 9208 and found the latter to be more specific for tariff purposes. Finally we note that in a February 15, 1996, published decision the Court ordered that the classification of a porcelain Santa on a chimney music box was to be dismissed from consideration at the Midwest trial as no such merchandise was at issue therein.

For the foregoing reasons NYRL C80019 is affirmed.

HOLDING:

The wind up music box with an incorporated glass water globe is classifiable in subheading 9208.10.00, HTSUS, which provides for "[m]usic 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: music boxes," and has a 1998 column one duty rate of 3.2 percent ad valorem. NYRL C80019 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division

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