CLA-2 RR:CR:GC 964332 KBR
Mr. Dennis Heck, Import Compliance Manager
Yamaha Corporation Of America
6600 Orangethorpe Avenue, P.O. Box 6600
Buena Park, CA 90622-6600
RE: Electronic Metronomes of the ME Series, QT Series and YM2000
Dear Mr. Heck:
This is in regard to your letters to the Director, Customs National Commodity Specialist Division, New York, dated May 12, 2000, and October 19, 2000, concerning the proper classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of electronic metronomes: ME series, QT series and YM2000. Your letters were referred to this office for reply. We regret the delay.
FACTS:
The subject electronic metronomes, which are made in Japan and China, are digital quartz machines which emit sounds at various speed to indicate the exact tempo at which a musical instrument should be played. The ME are palm sized units with an LCD display. They have A and B-flat tuning notes. The sound may be turned on or off. The QT1 series are saucer-shaped with volume controls and two different beat sounds, and have a red indicator light which flashes to the beat. The tempo can be set from 40 to 208 beats per minute. The QT2 electronic metronomes are arch-shaped with volume control, adjustable beat rhythms, reference tones for tuning, sweeping red and green LED lights, a mute button, time of day readout, and input and headphone jacks which allow use of headphones to hear a beat superimposed on a performance. The YM2000 Multi electronic metronome is the size of an audio cassette. It produces basic beat patterns or duplet, triplet and quintuplet beats as well as 30 rhythm patterns including rock, jazz, swing and tango, has a sweeping LED tempo indicator, and produces a tuning note over a one octave range (C4 to B4).
ISSUE:
What is the proper classification for electronic metronomes.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
9106 Time of day recording apparatus and apparatus for measuring, recording or otherwise indicating intervals of time, with clock or watch movement or with synchronous motor (for example, time registers, time-recorders):
Parts (for example, mechanisms for music boxes) and accessories (for example, cards, discs and rolls for mechanical instruments) of musical instruments; metronomes, tuning forks and pitch pipes of all kinds:
9209.10.00 Metronomes, tuning forks and pitch pipes
Metronomes are eo nomine provided for in subheading 9209.10.00, HTSUS. The ENs for this subheading provides the following definition for metronomes:
Metronomes are small mechanical devices used to indicate the exact tempo in which a piece of music is to be played; they are generally contained in a pyramid shaped box and may be fitted with a bell. The main part is a beating rod pivoted at its lower end; the movement of the rod may be accelerated or retarded according to a scale located behind the bar.
The group also includes metronomes used for industrial purposes; these are fitted with electrical contacts.
Although the definition provided in the ENs describes metronomes as “mechanical”, we do not find that the subject electronic metronomes are excluded. First, the language of the heading specifically includes “metronomes, tuning forks and pitch pipes of all kinds” (emphasis added). Second, as noted above, the ENs are instructive for interpreting the HTSUS and describe the scope of the heading, but are not legally binding. Third, it is important to understand that the HTSUS is meant to be a “living” document. The court stated in Borneo Sumatra Trading Co., Inc. v. United States, 311 F. Supp. 326, 338-39 (Cust. Ct. 1970), the “tariff acts are ‘written for the future,’ and that certain articles are deemed to be technological advancements or commercially sophisticated versions of eo nomine provisions for merchandise.” Citing R.J. Suanders & Co., Inc. v. United States, 49 CCPA 87, C.A.D. 801 (1962). See also, Simmon Omega, Inc. v. United States, 83 Cust. Ct. 14, 36-7 (1979) (“it is inconceivable that Congress would have intended to foreclose from classification … future innovations….”) This is echoed by the court in Terumo Corp. v. United States, 8 C.I.T. 44, 45 (1984), where the court stated, “An eo nomine provision, expressed without limitation or a demonstrated contrary legislative intent, judicial decision, or administrative practice, will include all forms of the article, including improved versions originating since the legislative enactment. Congress legislated for the future and is presumed to have intended to cover all forms of the article as they are developed.”
While we note that the description in the ENs of a metronome indicates it is a “mechanical device”, the court has held that simply electrifying a previously manual article does not remove it from its existing classification. “It is evident that the application of electrical operation to small articles in common use, such as various kinds of brushes, is going to make them more complicated in structure…. The brush is still a brush.” Nomura (America) Corp. v. United States, 299 F. Supp. 535, 540 (Cust. Ct. 1969). Further, “Legislative history may be used for the purpose of ascertaining Congressional intent where the statute is ambiguous, but it should not be used to introduce ambiguity where the language is clear.” Terumo Corp., supra at 46. We find that electronic metronomes are classifiable in the eo nomine provision for metronomes, subheading 9209.10.00, HTSUS.
The models other than the QT1 also produce tones electronically for tuning purposes. Subheading 9209.10, HTSUS provides for metronomes, tuning forks and pitch pipes. Therefore, articles which combine the functions of each named article in the subheading are also classified within that same subheading. In addition, the QT2 model contains a clock function, which function is covered by heading 9106, HTSUS. By application of GRI 3(b), the clock and combination metronome/tuning device are a composite good. Pursuant to GRI 3(b), composite goods shall be classified based on the component which gives the good its essential character. As the QT2 is advertised as a metronome with additional functions, we believe the essential character of the QT2 is provided by the metronome.
HOLDING:
Electronic metronomes, ME series, QT series and YM2000, are classifiable in subheading 9209.10.00, HTSUS, as metronomes, tuning forks and pitch pipes.
Sincerely,
John Durant, Director
Commercial Rulings Division