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HQ 962263




January 17, 2000

CLA-2 RR:TE 962263 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9026

Area Port Director
U.S. Customs Service
1000 Second Avenue
Suite 2100
Seattle, Washington
98104-1049

RE: Application for Further Review of Protest No. 3001-98-100179; Redelivery Notice; Classification of Violin Bow Case; Subheading 4202.92.9026.

Dear Sir or Madam:

The purpose of this correspondence is to address the Application for Further Review of Protest Number: 3001-98-100179. The Importer of Record and Protesting Party is Entertainment Music Marketing Corporation. The Protesting Party is represented by Mares Shreve & Associates, Inc.

The Customs Service issued a Notice to Redeliver to Entertainment Music Marketing Corporation. The Notice to Redeliver was based on the Customs Service’s classification of the merchandise in subheading 4202.92.9026, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which requires a textile category 670 visa. The importer did not produce a visa at the time of entry of the merchandise.

A review of the Notice to Redeliver and the Protest indicates that the Protest was timely filed pursuant to 19 U.S.C. 1514 (c) (3) (West 1999 & Supp. 2000) and 19 C.F.R. 174.12 (e) (2). The Notice to Redeliver was issued on June 4, 1998. The Protest was filed on June 26, 1998, within ninety days of the decision of the Customs Service to require redelivery of the merchandise or the production of a category 670 visa.

Correspondence from Mares Shreve & Associates dated June 11, 1998, and the Protest filed on the behalf of Entertainment Music Marketing Corporation on June 26, 1998, were reviewed prior to this decision. A telephone conference was conducted with counsel for the Protestant on August 15, 2000.

FACTS

The article in issue, identified by the Protestant as a “violin bow bag,” is manufactured of man-made textile materials. It measures twenty-nine and one-half (29 1/2) inches in length and two and three-fourth (2 3/4) inches in width. The interior is padded and measures approximately two (2) inches wide, the sides being sewn approximately one-fourth (1/4) of an inch from the exterior edge of the article. It has an opening at one end, the top end, which has a three (3) inch long flap that folds over and secures to the main body of the article by hook and loop fasteners.

The “violin bow bag,” according to the Entry Summary filed by Mares Shreve & Associates as the agent for Entertainment Music Marketing, is a product of the People’s Republic of China.

ISSUE

Did the Customs Service properly issue the Notice to Redeliver to Entertainment Music Marketing Corporation based on the failure of the importer to provide Customs with a textile category 670 visa at the time of entry of the merchandise ?

LAW AND ANALYSIS

Resolution of the issue of whether the Notice to Redeliver issued by the Customs Service was proper requires a determination of whether the merchandise, the “violin bow bag,” requires a textile visa. A determination of whether the “violin bow bag” requires a textile visa may only be made subsequent to concluding the correct classification of the article pursuant to the Harmonized Tariff Schedule of the United States Annotated. The Customs Service will, therefore, endeavor to properly classify the merchandise in order that the ultimate issue, whether the Notice to Redeliver was properly issued, may be resolved.

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States Annotated is governed by the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.”

A review of the headings of Chapter 42, Articles of Leather; Saddlery and Harness; Travel Goods, Handbags and Similar Containers; Articles of Animal Gut (Other than Silkworm Gut)

Titles of chapters are provided for ease of reference only. See General Rule of Interpretation 1., the notes of Section VIII and Chapter Notes of Chapter 42 lead the Customs Service to conclude that the resolution of this matter will be based on two competing subheadings of the tariff schedule. The HTSUSA classification subheadings considered by the Customs Service in rendering this Ruling Letter were: (1) 4202.92.5000; and (2) 4202.92.9026. Subheadings 4202.92.5000 and 4202.92.9026 of Chapter 42 provide:

4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sport bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper:

Other:
With outer surface of sheeting of plastic or of textile materials:

Musical instrument cases

Other:
Other
With outer surface of textile material:

Other:
Of man-made fibers.

The issue which distinguishes the subheadings is whether the article, the “violin bow bag,” is a “musical instrument case” and properly classified in subheading 4202.92.5000, HTSUSA, or only an “other” container with an outer surface of man-made textile fibers “similar” to the “[t]runks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, [and] holsters” enumerated in the first aspect of the heading and properly classified in subheading 4202.92.9026, HTSUSA. It is specifically noted, in accord with the dictates of GRI 6, that the analysis initially proceeds between the competing subheadings at the eight digit subheading level. See General Rule of Interpretation 6. The issue at the eight digit subheading level is whether the merchandise is more specifically described as a “musical instrument case” in subheading 4202.90.50, HTSUSA, or an “other” container in subheading 4202.92.90, HTSUSA.

Resolution of the question of whether the “violin bow bag” is a “musical instrument case” or an “other” container involves determining whether a violin bow is a musical instrument pursuant to the HTSUSA. If a violin bow, pursuant to the tariff schedule, is not a musical instrument, then a case in which a bow is carried may not be deemed a musical instrument case. Chapter 92 of the tariff schedule, entitled Musical Instruments; Parts and Accessories of Such Articles, is of assistance in making this determination.

Subheading 9202.10.0000, HTSUSA, and the Chapter Notes to Chapter 92 contribute in resolving the issue of whether a violin bow is a musical instrument. A review of subheading 9202.10.0000, HTSUSA, “Other string musical instruments (for example, guitars, violins, harps): Played with a bow” leads to the conclusion that it is only the violin and not the bow that is considered to be a musical instrument for classification purposes. This conclusion is supported by a review of Note 2 of the Chapter 92 Notes which references bows as being devices used in playing the musical instrument.

The Explanatory Notes (EN) to Chapter 92 further aid in concluding that violin bows are not musical instruments pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). The EN’s represent the official interpretation of the HTSUS at the international level. The Explanatory Notes, although not law in the United States and, therefore, not legally binding on the Customs Service in its interpretation of the HTSUS, are considered a valuable interpretative reference. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). Explanatory Note 92.02 (A) addresses “Instruments played with a bow” and provides that violins are among the “chief examples” of such instruments.

The conclusion drawn from subheading 9202.10.0000, HTSUSA, the Chapter Notes and the EN’s is that violin bows are not musical instruments. If the bow is only used to play the instrument, then it is the violin that is the musical instrument for classification purposes. See also Subheading 9209.92.6000, HTSUSA (addressing parts and accessories of musical instruments, bows and other parts and accessories for string instruments played with a bow); Explanatory Note 92.09.

Port Decision DD 889330 addressed a similar issue involving the classification of a drumstick bag. The decision classified a drumstick bag under subheading 4202.92.90, HTSUSA, concluding that the drumsticks were accessories to drums and not musical instruments. See also Explanatory Note, Ch. 92 (2) and 92.06 (A)(2) (providing that drums are musical instruments sounded by striking with sticks).

Having reviewed Chapter 42, Chapter 92, the corresponding Explanatory Notes and Port Decision DD 889330, it is the conclusion of the Customs Service that violin bows are not musical instruments, thereby precluding classification of the violin bow bags under consideration as “musical instruments cases.” The merchandise that is the subject of the instant protest is properly classified as an “other” container and ultimately classified in subheading 4202.92.9026, HTSUSA.

HOLDING

The Protest should be DENIED. The Notice to Redeliver was properly issued.

The “violin bow bag” is classified in subheading 4202.92.9026, Harmonized Tariff Schedule of the United States Annotated.

The textile category is 670.

In accordance with Section 3 A (11) (b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the Protesant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.

Sixty days from the date of this decision, the Office of Regulations & Rulings will make the decision available to Customs personnel and to the public on the Customs Service Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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