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HQ 964013




December 20, 2000

CLA-2 RR:CR:GC 964013 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.89.90

Port Director of Customs
Los Angeles-Long Beach Seaport
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-98-150032; electrical musical carousels and music box

Dear Port Director:

The following is our decision regarding Protest 2704-98-150032 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of two electrical musical carousels and a music box. The entries under protest were liquidated on April 10, 1998, and the protest was timely filed on July 9, 1998.

FACTS:

The articles under protest consist of two electrical musical carousels and a music box, all of which are intended for indoor use. The articles under protest are as follows:

An electric music box, identified as a “Mr. Christmas Holiday Music Box” (#28901), which resembles an antique wind-up music box which is powered by an electrical AC adapter. It plays 15 songs (the songs are not identified). Its design consists of seven tiny mice in formal dresses that watch the activity. Neither the articles’ invoice nor the seller’s catalog indicates musical tune titles.

An electrical musical carousel, identified as a “Animated Holiday Go Around” (#29107), plays 25 Christmas songs. This revolving carousel’s design consists of four horses and is powered by an electrical AC adapter.

The second electrical musical carousel, identified as a “Holiday Around the Carousel” (#27901), contains 15 Christmas carols and 15 “all time classics for year-round use”. Its design consists of children riding on eight horses and two sleighs. It is powered by an electrical AC adapter.

The protestant entered the merchandise on May 27, 1997, and May 31, 1997, under subheading 9505.10 HTSUS, which provides for “articles for Christmas festivities and parts and accessories thereof”.

The entries were liquidated on April 10, 1998, under subheading 8543.89.90, HTSUS, which provides for “electrical machines and apparatus, having individual functions, not specified or included elsewhere; parts thereof: other machines and apparatus: other, other, other, other”.

Protestant claims that the articles are classifiable as festive articles in heading 9505 as provided by the decisions of Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest) and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum).

ISSUE:

Whether the “Holiday Music Box”, the “Animated Holiday Go Around” and the “Holiday Around the Carousel” are classifiable as articles for Christmas festivities and parts and accessories thereof within subheading 9505.10, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings and legal notes under consideration are as follows:

Note 1(p),
§ XVI This section does not cover articles of Chapter 95.

Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof.

Other machines and apparatus:

Other:
Other:
Other:
Other

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:

9208.10.00 Music boxes

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Articles for Christmas festivities and parts and accessories thereof:

The subject entries were liquidated in subheading 8543.89.90, HTSUS. EN 13 to heading 8543, HTSUS, states that: “[t]he heading includes, inter alia: Electric 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 integrated circuit, a resistor, a loud speaker and a mercury cell [which] contain fixed musical programmes”. As the subject articles contain a music module (which is comprised of an electric apparatus), this feature makes the subject articles classifiable as electrical apparatus not elsewhere specified or included in the Tariff.

When goods are, prima facie, classifiable under two or more headings, we then consider GRI 3(a) which states, in pertinent part, that “the heading which provides the most specific description shall be preferred to headings providing a more general description.” The ENs to GRI 3a provide that the order of priority shall be as follows:

(a) specific description;
(b) essential character;
(c) heading which occurs last in numerical order.

EN IV to GRI 3(a) provides as “[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, in general it may be said that: (a) description by name is more specific than a description by class. [emphasis added]

(b) if 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]

With respect to the “Holiday Music Box”, the term “music box” is defined as “a small mechanical movement [which] plays tunes automatically [and] 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 “Holiday Music Box” contains a small mechanical movement, plays tunes and is incorporated in a case, it appears to meet the Pukel definition of a music box.

The HTSUS provides specifically for music boxes in heading 9208, HTSUS. ENs to heading 9208, HTSUS, provide, in pertinent part, for music boxes as:

“[c]onsist[ing] 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 them 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.”

As the subject music box’s main component is not operated by a wind-up mechanism (as described by the above EN), nor composed of a cylinder set with pins, heading 9208 does not describe the subject goods.

The protestant contends that the subject articles are classifiable as festive, carnival or entertainment articles within heading 9505, HTSUS. The ENs to heading 9505 state, in pertinent part, that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

An article may be classified in heading 9505 if it meets the "class or kind" criteria for festive articles as provided for in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997). In this case, the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles," and provided new guidelines for classification of such goods in the heading. It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class of "festive articles". In general, merchandise is classifiable as a festive article in heading 9505, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in the celebration of, and entertainment on, a holiday; and 3. Is associated with or used on a particular holiday.

Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of "festive articles," decorative household articles which are representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative articles related to holidays and symbols not specifically recognized in Midwest or in the ICP, 32 Customs Bulletin 2/3 at p. 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “festive articles”. Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

With respect to the three articles, two of the three Midwest criteria are satisfied. Although the goods are not composed predominately of precious or semiprecious stones/metals and function primarily as decoration or functional items, they are not used in celebration of a particular holiday. As a result, they are not recognized as festive articles under Midwest. Further, unlike the articles in Midwest, none of the goods’ designs incorporate any recognized Christmas holiday symbol (such as Santa Claus). We note the use of traditionally associated Christmas colors--green and red. However, these colors alone are not dispositive of the articles’ qualification as festive goods in celebration of a recognized holiday such as Christmas.

Unlike the “Santa Caroling Carousel” in HQ 961402, dated February 3, 1999 (which was composed of four carousel horses, a small elephant, a soldier, small bear and Santa Claus), neither the “Holiday Around the Carousel” (nor its advertisement) display recognized symbols traditionally associated with Christmas. In fact, this article appears to be more suitable for use throughout the year rather than the Christmas holiday. Further, although the importer cites HQ 960996, dated July 23, 1998, in its argument that the subject articles are classifiable as festive articles within heading 9505, this ruling is not supportive of the importers’ argument that the subject merchandise are classifiable as festive articles. Rather, in HQ 960996, Customs found the “Christmas Magic Mainstreet” classifiable as a festive article since it fell within the “scope of the class of ‘festive articles’ because “its wreaths, carolers, songs and Santa Clause indicated its use during the Christmas holiday”. See also NY E87036, dated October 6, 1999 (classifying a musical chime Christmas carousel (which plays 12 Christmas tunes) within subheading 9505.10.25, HTSUS.)

In the case of the “Animated Holiday Go Around” and the “Holiday Around the Carousel”, both articles contain horses. However, neither the Midwest Court nor Customs recognize horses as accepted symbols of a recognized holiday.

As the subject articles are not specifically recognized in Midwest or in the ICP, we consider whether Carborundum’s “use” criteria determines whether the goods belong to a class or kind of “festive articles”.

With respect to the physical characteristics of the “Holiday Music Box’s” dancing mice, the “Holiday Around the Carousel’s” riding animals and idyllic winter scenes and all of the articles’ use of traditional Christmas colors (red and green), none turn the goods into Christmas festive articles.

Although the expectations of the ultimate purchaser include using the articles during the holiday, this is not conclusive of use to satisfy the Carborundum use test. For example, with respect to the “Holiday Around the Carousel”, it also contains non-Christmas tunes which may be used throughout the year, not limited to the Christmas season.

The articles’ channel of trade is for sale in Walmart stores. Similar goods would typically be displayed and sold in other gift shops along with knick-knacks, not particularized to Christmas merchandise. Moreover, although we cannot dispute that these articles may be stocked, displayed and sold more during the Christmas season than any other time of the year, this is not determinative of their qualification within the class of seasonal festive merchandise.

With regards to the goods’ environment of sale, we find the same rationale applies here. Although the importer indicated that the goods would be sold during Valentine’s Day, this is not sufficient evidence that their purchase would qualify them within the class of seasonal festive merchandise.

As to the use in the same manner as merchandise that defines the class, we believe the goods would likely stay out during the fall and winter season and be put away the following spring. As a result, they would not be used in the same manner as Christmas festive goods and do not pass Carborundum’s “use” test.

Therefore, as none of the subject merchandise qualify to be festive articles within heading 9505, Note 1(p) to §XVI does not apply. At GRI 1, the subject merchandise is classifiable within subheading 8543.89.90, HTSUS, which is the most appropriate subheading, which provides for “electrical machines and apparatus, having individual functions, not specified or included elsewhere; parts thereof: other machines and apparatus: other, other, other, other”.

HOLDING:

The subject electrical musical carousels and music box are classifiable under subheading 8543.89.90, HTSUS.

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

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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