CLA-2 CO:R:C:M 955574 KCC
Mr. Gene Schwam
Aircargo Brokerage Co.
2541 N. W. 72nd Avenue
Miami, Florida 33122
RE: Wind-up Musical Santa Claus on a See-Saw; music box; EN 92.08;
HRL 081657; HRL 072786; 9505; festive article
Dear Mr. Schwam:
This is in response to your letter dated December 14, 1993,
regarding the tariff classification of a wind-up musical Santa
Claus on a see-saw under the Harmonized Tariff Schedule of the
United States ("HTSUS"). A sample was submitted for our
examination. We regret the delay in responding to your request.
FACTS:
The article is a wind-up musical Santa Claus on a see-saw
("musical Santa Claus see-saw"). The base is composed of ceramic
and is circular measuring approximately 4 1/2 inches in diameter
and 2 1/2 inches in height. The base contains the wind-up musical
movement and holds a ceramic see-saw approximately 5 inches in
length. A ceramic figure of Santa Claus is at one end of the see-
saw and a ceramic decorated Christmas tree is at the other end.
When the musical movement is activated it plays "Jingle Bells" and
moves the see-saw up and down.
You claim that the musical Santa Claus see-saw should be
classified as a festive article under heading 9505, HTSUS, because
its essential character is that of a Christmas decoration which
would only be used during the Christmas season.
ISSUE:
Where is the wind-up musical Santa Claus on a see-saw
classified under the 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 terms of the headings and any relative
section or chapter notes...." The competing subheadings are as
follows:
9208.10.00 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...Music boxes.
9505.10.50 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...Other...Other....
In this case, the musical Santa Claus see-saw is a ceramic
figurine mounted over a music box. Music boxes are classifiable
under subheading 9208.10.00, HTSUS. In understanding the language
of the headings of the HTSUS, the Harmonized Commodity Description
and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized.
The ENs, although not dispositive, are to be used to determine the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989). EN 92.08 (pgs. 1561-1562) states
that musical 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.
Customs has classified music boxes with earthenware and
ceramic figurines in item 725.50, Tariff Schedules of the United
States (TSUS) (the precursor tariff provision to subheading
9208.10.00, HTSUS). See, Headquarters Ruling Letter (HRL) 081657
dated December 1, 1988, and HRL 072786 dated September 21, 1983.
Congress has indicted that earlier tariff decisions must not
be disregarded in applying the HTSUS. The conference report to
the Omnibus Trade Bill of 1988, stated that "on a case-by-case
basis prior decisions should be considered instructive in
interpreting the HTS[US], particularly where the nomenclature
previously interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of the HTS[US]."
H. Rep. No. 100-576, 100th cong., 2d Sess. 548, 550 (1988). Since
the subject nomenclature in the TSUS (item 725.50) and the HTSUS
(subheading 9208.10.00) are similar, because they are the
respective tariff provisions which cover music boxes, and the
articles at issue in the above cited HRLs and the instant case are
similar, we find the TSUS rulings instructive.
Therefore, we are of the opinion that the musical Santa Claus
see-saw is classified as a music box under subheading 9208.10.00,
HTSUS. We note that EN 92.08 states that:
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 appears to imply that a music box with ceramic
figurine which is essentially utilitarian or ornamental in function
is excluded from classification as a music box under subheading
9208.10.00, HTSUS. However, strictly following the ENs would
exclude the typical ceramic figurine music boxes from
classification in the HTSUS as music boxes. Whereas, music boxes
with figurines made from other material would be classified as
music boxes under subheading 9208.10.00, HTSUS.
An examination of the above-reference EN 92.08 language
indicates that articles, such as clocks, furniture, vases and
ceramic figurines, with music boxes contained in the body of the
articles are excluded from classification as music boxes and are
classified as if they did not contain a music box. The musical
Santa Claus see-saw is not the type of article meant to be excluded
from classification as a music box by EN 92.08. The musical Santa
Claus see-saw is exactly the type of music box classifiable under
subheading 9208.10.00, HTSUS.
Heading 9505, HTSUS, which provides for, inter alia, festive,
carnival and other entertainment articles. The musical Santa Claus
see-saw is not classified under this heading because, as discussed
above, it is specifically classified as a music box under
subheading 9208.10.00, HTSUS. Accordingly, the musical Santa Claus
see-saw is not classifiable under heading 9505, HTSUS.
HOLDING:
The wind-up musical Santa Claus see-saw is classified under
subheading 9208.10.00,HTSUS, as a music box, dutiable at the Column
1 rate of 3.2 percent ad valorem.
Sincerely,
John Durant, Director