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HQ W967583




March 9, 2007

CLA-02 RR:CTF:TCM W967583 RSD

CATEGORY: CLASSIFICATION

TARIFF NOs: 9207.90.00

Mr. Dennis Heck
Yamaha Corporation of America
6600 Orangethorpe Avenue
P.O. Box 6600
Buena Park, California 90622-6600

RE: Revocation of NY B89582, NY G86610, NY G88068, NY B84187, NY B85746, NY D85594, NY E89544, and NY K82460 regarding the Tariff Classification of Silent Electric Musical Instruments, including a Silent Electric Violin, Cello, Bass, Brass Systems, Electric Drums, Digital Drums, and EZ Electric Guitars

Dear Mr. Heck:

The National Commodity Specialist Division of Customs and Border Protection (CBP) has previously issued to Yamaha Corporation of America (Yamaha) a series of rulings that concern the classification of silent electric instruments under the Harmonized Tariff Schedule of the United States (HTSUS). The specific rulings in which CBP ruled on the classification of silent electric instruments are New York Ruling (NY) B89582 dated October 14, 1997, concerning a silent electric violin; NY G86610 dated February 26, 2001, concerning a silent electric cello and a silent electric bass; NY G88068 dated March 14, 2001, also concerning a silent electric cello and a silent electric bass and cases; NY B84187 dated May 7, 1997, concerning silent electric drums; NY B85746 dated June 12, 1997, concerning a electric drum set; NY D85594 dated January 14, 1999, concerning a digital drum; NY E89544 dated November 26, 1999, concerning digital drums; and NY K82460 dated February 9, 2004, concerning EZ electric guitars. In these rulings, CBP held that these silent electric instruments were classified in heading 8543, HTSUS as: “other electrical machines and apparatus, not specified or included elsewhere in [Chapter 85, HTSUS].” We have reconsidered these rulings, and we now believe that the classification of the silent electric instruments set forth in these rulings is incorrect. This ruling sets forth the correct classification of the silent electric instruments that were the subject of the previously cited rulings. In the proposed ruling we also reviewed NY A88586 dated November 6, 1996, concerning silent brass systems. We now believe that our analysis in the proposed ruling regarding these products was incorrect. Therefore, we will not be revoking NY A88586, as we believe these products were correctly classified in heading 8543 as “other electrical machines and apparatus.”

Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), 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, 2186 (1993), a proposed notice revoking the above cited rulings as described below was published in the Customs Bulletin, Volume 39, No. 38, on September 14, 2005. In response to this notice, you submitted a comment. This was the only comment received. We regret the delay in responding to the comment and publishing this final ruling and notice.

FACTS:

In NY B89582, CBP considered the classification of a silent electric violin, designated as Model SV-100. The ruling describes the musical instrument as a non-acoustic violin with a spruce body, maple neck, and an ebony fingerboard and pegs. The instrument also has a plastic side body, a chin rest, and a tailpiece. The violin utilized a piezo pickup sensor and built-in reverb. The silent feature of the violin allows a musician to practice or play through the use of earphones. Instead of having an internal resonating chamber that a traditional acoustic violin has, the silent electric violin has a studio quality audio pickup below its bridge. An internal effect processor is added to the violin to produce a full bodied tone that could be amplified for live performances or studio recording. An auxiliary input on the body on each of these instruments can easily be connected to an external CD player or tape machine for practicing with pre-recorded material. A second input jack allows musicians to duet with another silent instrument player.

NY G86610 and NY G88068 concerned the Yamaha SVC-100 Silent Electric Cello and SVB-100 Silent Electric Bass. According to these rulings, each of these units employs a piezo pickup sensor with a built-in reverb. Like the silent electric violin, the silent design of the electric cello and bass allows the musician to practice or play without disturbing others. According to an article published on the Popular Mechanics web site dated April 1, 1999, the silent electric cello weighs 7 pounds 11 ounces. The instrument uses a high-quality pickup, which senses the vibration of the strings, which is connected to an internal effects processor. This replaces the traditional internal amplification cavity of an acoustic cello. Either two AA batteries or AC current powers the silent electric cello. The silent electric cello uses the same technology as the silent electric violin. In NY G88068, CBP also considered the classification of nylon cases for the silent electric bass and cello. CBP separately classified the nylon cases in subheading 4202.92.90, HTSUS, as “cases with outer surface of sheeting of plastic or of textile materials: Other: Other: Other.”

CBP has previously issued four rulings concerning electric percussion instruments. NY B84187 concerned the DTX “Silent Session” Electronic Drum System (Model DTK 10), an interactive electronic percussion system which allows the user to play specially designed drums and cymbals through the use of headphones. The system is operated through a trigger module and consists of various integrated components.

NY B85746 also dealt with the classification of an electronic drum basic system. It has five specific components. The TP80S Drum Pads and the PCY 80S Cymbal Pads consist of rubber pads containing a piezo-electric pick up that detects the subtle nuances of a drumbeat and a cymbal sound. The KP80 kick pad operates on a similar principle and detects the sounds of an acoustic bass drum. The HH80 Hi-Hat Controller is a foot-operated control pedal that regulates the sound output and can control the various pitches. The TPCL80 Tom Holder is a device for holding the “tom” which strikes the kick pad.

In NY E89544, CBP considered a digital drum set, the Yamaha DD-50. It is an electronic percussion drum set with four large and three small touch sensitive drum pads and two built-in-speakers with tempo control. Various preprogrammed tempos, ranging from disco to waltz, are produced when the drumsticks strike the pads. The unit is packaged with two drumsticks, foot switches and an AC/DC power adapter. A second digital drum set was considered in NY D85594. In that case, CBP considered the Yamaha DD-9(M) Digital Drum, an electronic percussion drum set with four-touch sensitive drum pads and one built-in speaker. Various tempos, ranging from disco to waltz can be selected thereby producing background rhythm to the drumbeat created when a drumstick strikes the pads. There are also four separate sound effect buttons which produce sounds representing a barking dog, a ringing alarm and breaking glass.

In NY K82460, CBP classified the EZ-EG and EZ-AG electric guitars. The submitted literature indicated that they were “electronic” acoustic guitars without strings. Since these guitars do not have strings, the chord changes and strumming can be made automatically.

In the rulings cited above, CBP classified the silent electronic musical instruments in heading 8543, HTSUS, as other electrical machines and apparatus not specified or included elsewhere in Chapter 85, HTSUS. CBP classified these instruments in heading 8543, HTSUS, as electrical articles because the instruments did not have the required external audio system to broadcast sound.

ISSUE:

Whether the silent electric musical instruments are classified in heading 8543, HTSUS, as other electrical machines and apparatus not specified or included elsewhere in Chapter 85, HTSUS, or in heading 9207, HTSUS, as musical instruments, the sound of which is produced or must be amplified electrically.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined 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.

Pursuant to title 19 United States Code, Section 3005, the Harmonized Tariff Schedule of the United States is in the process of being amended to reflect changes recommended by the World Customs Organization. The amendments are expected to affect the classification of your merchandise. On January 4, 2007, Presidential Proclamation 8097 containing these changes was published in the Federal Register. See 72 FR 453, Volume 72, No. 2. The proclaimed changes are effective for goods entered or withdrawn from warehouse for consumption on or after February 3, 2007.

The HTSUS provisions under consideration are as follows:

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

8543.70 Other machines and apparatus:

Other:

Other:

8543.70.96

In the prior rulings regarding silent electrical musical instruments, the instruments were classified in subheading 8543.89.96, HTSUS, as: “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. This subheading was subsequently changed by the revisions in the HTSUS that are effective on February 3, 2007. Other:

9207 Musical instruments, the sound of which is produced, or must be amplified, electrically (for example, organs, guitars, accordions):

9207.90.00 Other.

9503.00.00 Tricycles, scooters, pedal car and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.

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 Harmonized System. CBP believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 85.43 states, in relevant part:

This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.

Most of the appliances of this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors, etc.) operating wholly electrically. However, the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.

The language of EN 85.43 indicates that heading 8543, HTSUS, covers only electrical appliances and apparatus that are not described more specifically by a heading of Chapter 85 or of another Chapter of the Nomenclature. Thus, we must determine if there is a heading which more specifically describes the silent electric musical instruments. We consider the alternative provision, heading 9207, HTSUS, a heading that covers musical instruments that require electrical amplification.

The general notes in the ENs for Chapter 92 explain that Chapter 92 covers:

(A) Musical instruments (heading 92.01 to 92.08). (B) Parts and accessories of these instruments (heading 92.09).

Some musical instruments (pianos, guitars, etc.) may have an electrical sound pick-up and amplifying device; they nevertheless remain classified in their respective headings in this Chapter, provided that, without the electrical equipment, they can still be used like the similar conventional-type instruments. The electrical equipment itself, unless forming an integral part of the instrument or housed in the same cabinet as the instrument, is however in all cases excluded (heading 85.18).

Electrical or electronic instruments (other than the automatic pianos of heading 92.01) which are not suitable for playing without the electrical or electronic equipment fall in heading 92.07 (see the corresponding Explanatory Note). The latter heading therefore covers, for example, electrostatic, electronic or similar guitars, organs, pianos, accordions, carillons.

EN 92.07 states:

This heading covers musical instruments in which the sound is generated or amplified electrically (including electronically) (i.e., those which cannot be played for normal hearing without their electrical or electronic components, even though the vibrating devices with which they are fitted may produce faint sounds). In this respect, they differ from certain other instruments (e.g., pianos, accordions, guitars) which, while they may be equipped with an electrical sound pick-up and amplifying device, are nevertheless independent instruments suitable for playing without such devices, in the same way as similar conventional-type instruments.

Although they may generally be essential for the normal operation of the instruments of this heading, electrical or electronic apparatus (in particular the amplifier and loudspeaker) are excluded and fall in their respective headings (Chapter 85) whenever they are not built into the unit itself. When, however, they are incorporated in or housed in the same cabinet as the instrument they are classified with the instrument, even though they may be packed separately for convenience of transport.

The silent electric violin, cello, and bass that were the subject of NY B89582, NY G86610, and NY G88068, clearly appear to meet the terms of heading 9207, HTSUS. These articles are musical instruments that require some type of electrical amplification provided by another device in order to produce audible musical sounds. In addition, they fit the description set forth in EN 92.07 for articles that are classified in heading 9207, HTSUS. The silent electric violin, cello and bass are described in the product literature as musical instruments that need to be attached to an electrical apparatus, such as a speaker system or headphones for a listener to be able effectively to hear the musical sounds that they produce.

The silent electric string instruments, percussion systems and EZ guitars also need to be plugged into other electronic devices to function. While the silent electronic instruments require some other form of amplification by being attached to some type of speaker system, it is also understood that plugging the instruments into a speaker system, headphones or some other type of amplification device is a rather simple operation. Once the instruments are plugged into a speaker system or headphones, they can be played basically the same way a conventional musical instrument is played to produce musical sounds. The other electronic musical instruments that we have ruled upon such as the digital and electronic drum systems, and the EZ guitars operate in the same general manner as the silent electric string instruments meaning that they also must be plugged into some type of speaker system to be effectively heard. Thus, they also meet the description of heading 9207, HTSUS.

EN 92.07 indicates that the electrical apparatus needed to amplify sound from electrical musical instruments are classified in Chapter 85 of the HTSUS. In addition, EN 92.07 further specifies that the electrical apparatus necessary to amplify the sound produced by electrical musical instruments are classified separately from the instruments themselves even when they are imported together unless they are both contained in the same built-in unit. Because musical instruments and electrical apparatus, like speakers, amplifiers and headphones, are considered as separate articles for classification purposes, it is evident that the drafters of the HTSUS intended that electronic musical instruments such as the silent electric violins, cellos, basses, brass instruments, drums, etc., be classified in heading 9207, HTSUS, even when they are imported without the electrical apparatus that is used to amplify their sound. Consequently, in accordance with EN 92.07, the silent electric musical instruments are classified in heading 9207, HTSUS, even if they are imported without the electrical apparatus that is needed to amplify their sound.

In your comment, you indicate you agree with our analysis in the proposed ruling that the silent string instruments that were the subject of NY B89582, NY G86610, and NY G88068 are classified in heading 9207, HTSUS, as musical instruments rather than in heading 8543, HTSUS. However, with respect to digital drum sets DD-9 and DD-50 that were classified in NY D85594 and NY E89544, you state that the electronic digital drum sets are not designed for the professional musician. You also state that the older digital drum family DD-9 and DD-50 are now discontinued and have been replaced by their newer versions, the DD-20 and DD-55. Most of the information you have provided concerns the DD-20 and DD-55. DD-20 and DD-55 are basically the same as the DD-9 and DD-50 and there are only insignificant and minimal differences between these products. Thus, the same analysis regarding the classification of the DD-9 and DD-50 percussion sets should also apply to the DD-20 and DD-55. You point out that the DD-9 is marketed to children as it has the capability to produce special effect sounds for a monkey, horse, cat, dog, etc. The DD-50 is marketed for the hobbyist, through your consumer product division and is sold to retailers like Toys R Us, Best Buys, Costco, B.J.’s, Aldi (grocery store) and Meijer (grocery store). Based on their low value, marketing channels, their design and their small size, you propose that the digital drum sets be classified as toy musical instruments in subheading 9503.50.00, HTSUS, which provides for: “Other toys; reduced-size (‘scale’) models and similar recreation modelsToy musical instruments and apparatus and apparatus and parts and accessories thereof.” You state that you believe that the EZ electric guitars that were the subject of NY K82460 should also be classified as toy musical instruments that are classified in subheading 9503.50.00, HTSUS.

In accordance to the revisions to the HTSUS that were effective on February 3, 2007, subheading 9503.50.00 was collapsed into subheading 9503.00.00.

The General EN for Chapter 95 states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." The U.S. Court of International Trade (CIT) construes heading 9503, HTSUS, as a "principal use" provision, insofar as it pertains to "toys." See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Thus to be a toy, the "character of amusement involved [is] that derived from an item which is essentially a plaything." Wilson's Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). It has been CBP’s position that the amusement requirement means that toys should be designed and used principally for amusement.

We have reviewed the brochures that describe the drum sets. The brochure for D-50 indicates that it is a 7-pad digital drum for the serious drummer. The brochure for DD-9 claims that drum set has top sound quality in an entry-level digital drum. The brochure further indicates that it has 4 touch sensitive drum pads, the built-in speaker provides great sound, the headphone jack allows private practice, and drumsticks are included. We note that the equipment in question is not flimsy and that it contains some sophisticated electronic components. We believe that the information regarding the DD-9 and DD-50 demonstrates that they are digital drum sets used primarily as systems for making music rather than for play or amusement. The fact that these percussion systems are not of high enough quality to be used by professional musicians does not mean that they should not be considered as musical instruments. The digital drum sets seem to be more than items that children or adults would use in a pretend activity (i.e., making believe that they are playing the drums). Accordingly, we continue to consider the position set forth in the proposed ruling regarding the classification of the DD-9 and DD-50 to be correct. Thus, we reiterate our finding that the digital drum sets DD-9 and DD-50 in question are electronic instruments that are classified in heading 9207, HTSUS, as musical instruments, the sound of which is produced, or must be amplified, electrically.

You also contend that the EZ guitars that were the subject of NY K82460 should be classified in subheading 9503.50.00, HTSUS. However, the brochure that you have submitted shows that the EZ guitars in question are products primarily designed for people interested in learning how to play the guitar. The information further indicates that an individual can play songs on the EZ guitars. The pictures of the products further show that they are substantial not flimsy articles. Thus, it appears that the EZ guitars will be primarily used for actually playing or learning to play the guitar and not for a pretend activity of playing a guitar. Therefore, we believe that the EZ guitars should not be considered as toys that are classified in 9503, HTSUS. Rather, we affirm our determination in the proposed ruling that the EZ guitars are classified heading 9207, HTSUS.

In NY G88068, CBP also classified the nylon carrying cases that were used to carry the silent electric cello and bass. The ruling indicated that the cases appeared to be specifically shaped carrying bags designed for a specific instrument. CBP held that the applicable subheading for the nylon cases was 4202.92.90, HTSUS, which provides for: “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases musical instrument cases: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other.” Assuming that the nylon cases are imported together with the silent electric cellos and basses, GRI 5(a) becomes applicable. GRI 5(a) provides, in pertinent part that "[c]amera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specifically shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith.” Based on the description provided in NY G88068 that the nylon cases are specially fitted for the electric cellos and basses, we find that the cases are musical instrument cases that meet the requirements of GRI 5(a), and thus they are classified together with the silent electric cellos and basses in heading 9207, HTSUS. If the bags are imported separately without the silent electric instruments, in order to be classified in subheading 4202.92.50, HTSUS, as musical instrument cases, rather than in subheading 4202.92.9026, as other cases, of man-made fibers, the burden will be on the importer to show that the imported bags are specially fitted for the specific musical instruments.

HOLDING:

The Silent Electric Musical Instruments described above are classified in heading 9207, HTSUS. They are specifically provided for in subheading 9207.90.00, HTSUS, as “[m]usical instruments, the sound of which is produced, or must be amplified, electrically: Other”, at a general, column one rate of duty of 5 percent ad valorem.

Duty rates are provided for requester’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.

EFFECT ON OTHER RULINGS:

NY B89582 dated October 14, 1997; NY G86610, dated February 26, 2001; NY G88068 dated March 14, 2001; NY B84187 dated May 7, 1997; NY D85594 dated January 14, 1999; NY E89544 dated November 26, 1999; NY K82460 dated February 9, 2004; and NY B85746 dated June 12, 1997 are revoked. NY A88586 dated November 6, 1996 will remain in effect. This ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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