CLA-2 RR:CR:GC 961100 MMC
Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue, 33rd Floor
New York, New York 10167
RE: NYRL C80019 affirmed; a wind up music box with an
incorporated glass water globe
Dear Mr. Murphy:
This is in reference to your November 11, 1997, and March
18, 1998, letters, on behalf of Noma Christmas, requesting
reconsideration of New York Ruling Letter (NYRL) C80019 dated
October 24, 1997, concerning, among other things, the
classification of a wind up music box with an incorporated glass
water globe under the Harmonized Tariff Schedule of the United
States (HTSUS). A sample was submitted for our examination.
FACTS:
The subject article, identified as Model 77126, is a wind up
music box with an incorporated glass water globe. The music box
plays the Christmas carole "Deck the Halls." The glass water
globe depicts "Winne the Pooh" characters in a Christmas scene.
The headings under consideration are as follows:
9208 [m]usic 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
9505 [f]estive, carnival or other entertainment articles,
including magic tricks and practical joke articles;
parts and accessories thereof
ISSUE:
Whether the wind up music box with an incorporated glass
water globe is classifiable as a music box or a festive article.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the Harmonized System is such that virtually all goods
are classified by application of GRI 1, that is, 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.
The tariff term "music box" is defined as "a small
mechanical movement playing tunes automatically, which 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 subject article contains a small mechanical movement, plays
tunes and is incorporated in a case, it meets this definition of
a music box. However, counsel argues that the article can also
be described as a festive article. We do not disagree. As was
indicated in NYRL C80019, Model 77131 featured the identical
article without the music box which was classified as a festive
article. As the wind up music box with an incorporated glass
water globe is described by both headings, it is not classifiable
according to GRI 1.
GRI 3(a) states, in pertinent part, that:
When...goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:
(a) [t]he heading which provides the most specific
description shall be preferred to headings
providing a more general description...
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 System. Customs believes
the EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989). The EN to GRI 3 states that:
(I) ...[t]hese methods operate in the order in which they
are set out in the Rule. ... The order of priority is
therefore (a) specific description; (b) essential character;
(c) heading which occurs last in numerical order.
...(III) [t]he first method of classification is provided
in Rule 3 (a), under which the heading which provides the
most specific description of the goods is to be preferred to
a heading which provides a more general description.
(IV) [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, but in general it may be
said that:
(a) [a] description by name is more specific than a
description by class (e.g., shavers and hair clippers,
with self-contained electric motor, are classified in
heading 85.10 and not in heading 85.08 as
electro-mechanical tools for working in the hand or in
heading 85.09 as electro-mechanical domestic appliances
with self-contained electric motor). [emphasis added]
(b) [i]f 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]
Applying this analysis to the subject article, the term "music
box" describes this article by name and the term "festive
article" describes it by the class of various articles to which
it belongs. As the term "music box", not "festive article",
more clearly identifies the subject article, the wind up music
box with an incorporated glass water globe is classifiable as a
music box, not a festive article.
Such a classification conclusion is consistent with the
holding of Amico, Inc. v. United States, 66 CCPA 5, C.A.D. 1214;
586 F. 2nd 217, (1978) [hereinafter Amico]. In Amico the TSUS
tariff headings under consideration were:
737 [t]oys, and parts of toys, not specially provided for:
737.80 [t]oys having a spring mechanism
* * * * * * * * * *
725 [o]ther musical instruments:
725.50 [m]usic [b]oxes
The Court held that a music box, consisting of a music box
mechanism in a clear plastic container incorporating miniature
dancing figurines under a plastic dome on top of the container,
was not "more than" a music box and therefore was classifiable as
a music box, not a toy, for tariff purposes. In its analysis,
the Court noted that "the function of the dancing couple...is
solely that of design and appearance, and, as such, is
subordinate and incidental to the function of the music box...."
The Court determined the figurines' function by examining whether
they served a separate commercial function and concluded they did
not. Finally, the Court noted that it would be an error to place
sole emphasis on a major selling feature, in this case the
figurines, as a basis for applying the "more than" doctrine where
the selling feature is incidental and ornamental only and has no
commercial value or function of its own.
Applying this Amico analysis to the subject article
indicates that it is classifiable as a music box. The
"function" of Christmas figurines is solely that of design and
appearance and is subordinate and incidental to the function of
the music box. The Christmas figurines do not serve a separate
commercial function or value of their own when combined with the
music box. That aspect or design is being sold separately as a
decorative article for its commercial value, as Model number
77131 and has rightfully been classified as a festive article.
As the customer can purchase the identical article without a
music box, Customs is left only to conclude that the customer
must be purchasing the subject article because of its music box
feature.
You argue that EN 92.08 indicates that the scope of the
tariff term "music box" does not include articles which are
essentially ornamental in function. EN 92.08, states, in
pertinent part, that:
Musical boxes. These consist of small mechanical movements
playing tunes automatically, incorporated into boxes or
various other containers....
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....
We do not disagree with your reading of EN 92.08. However, the
above provision exempts from classification in heading 9208 only
"[a]rticles which incorporate a musical mechanism [and] which are
essentially utilitarian or ornamental in function". The
examples used in the EN make it clear that the utilitarian or
ornamental function referred to is other than that of a music
box. As demonstrated above, the article under consideration does
not have such a utilitarian or ornamental function as its
essential function. Therefore, we conclude that the EN does not
preclude classification of the article in heading 9208 and, as
noted above, application of the GRI's as well as an appellate
court case support such a classification.
Finally you state that you believe the decision in Midwest
of Cannon Falls, Inc. v. United States, 122 F. d. 1423 (Fed Cir
1997) (hereinafter Midwest), applies to the subject music boxes.
Midwest addressed the scope of heading 9505, HTSUS,
specifically, the class or kind "festive articles" by defining
the word "ornament" and determined how to classify an article
when it is described by both the festive heading and another one.
In Midwest, a series of nutcrackers were determined to be
described by both the festive articles heading (9505) and the
doll heading (9502). The Court stated that "dolls" was an e.o.
nomine provision and that "ornament" was a use provision. It
then held that: "... a use heading is generally more specific
that an e.o. nomine one." However, rather than adopting a rule
for deciding between an e.o. nomine and a use provision under the
HTSUS, the Court chose to determine that the 9505 classification
was more specific based on "all the factors and circumstances."
We have preformed a similar analysis in this case. That is,
we have compared the term "festive article" in heading 9505 to
the term "music box" of heading 9208 and found the latter to be
more specific for tariff purposes. Finally we note that in a
February 15, 1996, published decision the Court ordered that the
classification of a porcelain Santa on a chimney music box was to
be dismissed from consideration at the Midwest trial as no such
merchandise was at issue therein.
For the foregoing reasons NYRL C80019 is affirmed.
HOLDING:
The wind up music box with an incorporated glass water
globe is classifiable in subheading 9208.10.00, HTSUS, which
provides for "[m]usic 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," and has a
1998 column one duty rate of 3.2 percent ad valorem. NYRL C80019
is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division