CLA–2 OT:RR:CTF:TCM H034739 AMM
Mr. Jeff Tooley
Alba Wheels Up International, Inc.
1122 La Cienega Blvd., Suite 678
Inglewood, CA 90324
Ms. Sarah Carey
Customs Compliance Specialist
Best Buy Corporate Campus
7601 Penn Avenue
South Richfield, MN 55423
RE: Modification of New York Ruling Letters R04026, M83685, and M85350; Classification of the Model 36909 “mi JamTM drummer.”
Dear Mr. Tooley and Ms. Carey,
This is in reference to New York Ruling Letters (NY) R04026, dated June 7, 2006, NY M83685, dated June 12, 2006, and NY M85350, dated July 27, 2006, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the Model 36909 “mi JamTM drummer.” In those rulings, Customs and Border Protection (CBP) classified the article under heading 8522, HTSUS, which provides for “Parts and accessories suitable for use solely or principally with the apparatus of headings 8519 to 8521”. We have reviewed these three rulings and found them to be incorrect. For the reasons set forth below, we are modifying these rulings.
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), notice of the proposed modification of the above-identified rulings and revocation of treatment relating to the tariff classification of the instant Model 36909 “mi JamTM drummer” was published on June 4, 2014, in the Customs Bulletin, Volume 48, Number 22. In that notice, CBP proposed that the instant product was classified in heading 9503, HTSUS. No comments were received on this proposal.
FACTS:
In each of the three rulings at issue, NY M85350, NY M83685, and NY R04026, CBP considered the classification of the Model 36909 “mi JamTM drummer.” CBP described the merchandise as follows:
The mi JamTM drummer (Model 36909) consists of two plastic drumstick shaped items that produce up to six different drum sounds when played. The drumsticks are connected via a cord to a small controller, which is used to modify the drum pattern, tempo, and volume of the sounds produced when using the drumsticks. The controller includes an audio out jack for connection with earphones or any other amplifying device, as well as an additional cord with a male connector end for connection with an iPod or any other music-reproducing device. This item draws energy from two AAA batteries, which are not included at the time of importation or at the time of retail sale.
See NY R04026.
A picture of the article, taken from the instruction manual available on the manufacturer’s website, is included below:
Model 36909 “mi Jam drummer”
ISSUE:
What is the proper classification under the HTSUS for the Model 36909 “mi JamTM drummer?”
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The 2014 HTSUS heading under consideration are:
8519 Sound recording or reproducing apparatus:
Other apparatus:
8519.81 Using magnetic, optical or semiconductor media:
Sound reproducing only:
8519.81.30 Other:
--------------------------------
8522 Parts and accessories suitable for use solely or principally with the apparatus of headings 8519 to 8521:
8522.90 Other:
Other:
8522.90.75 Other
--------------------------------
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 Other
--------------------------------
9503.00.00 Tricycles, scooters, pedal cars 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
Additional U.S. Rule of Interpretation 1, HTSUS, states, in pertinent part:
In the absence of special language or context which otherwise requires—
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;
* * *
Note 1 to Section XVI (which covers Chapter 85), HTSUS, states, in pertinent part: “This section does not cover: … (p) Articles of Chapter 95; …”.
Note 1 to Chapter 92, HTSUS, states, in pertinent part: “This chapter does not cover: … (c) Toy instruments or apparatus (heading 9503); …”.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 92 states, in pertinent part:
[T]his Chapter also excludes:
* * *
(b) Musical instruments which can be clearly recognised as toys because of the character of the material used, their rougher finish, the lack of musical qualities or by any other characteristics (Chapter 95). Examples include certain mouth organs, violins, accordions, trumpets, drums, musical boxes.
* * *
The EN to Heading 95.03 states, in pertinent part:
This heading covers:
* * *
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)[.]
* * *
This group includes: All toys not included in (A) to (C). Many of the toys are mechanically or electrically operated.
These include:
* * *
(xii) Toy musical instruments (pianos, trumpets, drums, gramophones, mouth organs, accordions, xylophones, musical boxes, etc.).
* * *
In the three rulings at issue, CBP classified the “mi JamTM drummer” under heading 8522, HTSUS, which provides for “Parts and accessories suitable for use solely or principally with the apparatus of headings 8519 to 8521”.
Note 1(p) to Section XVI, HTSUS, excludes articles of Chapter 95, HTSUS, from classification in Chapter 85, HTSUS. Also, Note 2(c) to Chapter 92, HTSUS, excludes goods of heading 9503, HTSUS, from classification in Chapter 92, HTSUS. Therefore, it is appropriate to first consider whether the “mi JamTM drummer” is properly classified under heading 9503, HTSUS.
In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020 (Ct. Int’l. Trade 2000), the Court of International Trade (CIT) held that “an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Id. at 1026. The court found its interpretation to be consistent with the holding in a prior and often cited case, Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977), which addressed the definition and treatment of the term “toy.” In Ideal Toy, the Customs Court held that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement.” Id. at 33. CBP has repeatedly adhered to this standard as set forth in Ideal Toy. See Headquarters Ruling Letter (HQ) HQ 965734, dated September 5, 2002; HQ 088494, dated April 19, 1991; and HQ 088694, dated July 10, 1991.
The Minnetonka court concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Id. at 1026. Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In determining whether the principal use of a product is for amusement, and thereby classified as a toy, CBP considers a variety of factors including general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). See HQ 966721, dated April 14, 2004. See also Minnetonka, 110 F. Supp. 2d at 1027, citing United States v. Carborundum Co., 63 C.C.P.A. 98, 536 F.2d 373 (1976).
It has two functional modes, called “standalone” and “interactive.” In standalone mode, the user can simulate drum sounds, such as a snare drum, tom toms, bass drum, hi-hat, and cymbal, by swinging the drumsticks and pressing the assorted buttons on the handles. The user has the option of playing along with pre-programmed background beats. In interactive mode, the user plugs the article into an MP3 device, such as an iPod®. The music contained on the MP3 device replaces the pre-programmed background beats, and the user is then able to play along with their favorite music. In either standalone or interactive mode, the user can attach the article to a personal computer and record the sounds they have made.
According to the manufacturer’s website, the article is available in the United States at stores such as Toys “R” Us, Target, Best Buy, KB Toys, Linens ‘N Things, and Fingerhut. These stores sell toys, gifts, and other items. The article’s instruction manual says it is for “ages 8 and up.”
The “mi JamTM drummer” consists of two plastic drumsticks attached by wire to a controller. The controller is designed to attach to an external speaker, earphones, MP3 device, and personal computer.The article is not designed to be used in the same manner as traditional drumsticks, which create sound when striking another surface. Instead, electronic sounds are created in response to the motion of the drumsticks. The article is not a unit that develops one’s musical skills, it is an electronic toy designed to provide amusement by allowing one to create their own music.
In NY M86122, dated August 29, 2006, CBP considered the “Blue Man Group Percussion Tubes.” This item was an electronic plastic interactive drum toy that consisted of 8 motion sensor percussion tubes, 5 different percussion instruments, 10 pre-programmed songs, drum sticks, and a built in speaker. The user could also connect the article to an MP3 player and play along with their favorite music. CBP classified this article a toy musical instrument under heading 9503, HTSUS.
In NY L85012, dated June 20, 2005, CBP considered the “Wireless Air Stix.” This item was a battery-powered toy musical hand-held light stick, with a built-in speaker, and buttons which simulate drum sounds when pressed. CBP classified this article as a toy musical instrument under heading 9503, HTSUS.
In HQ W967583, dated March 9, 2007, CBP reconsidered the classification of the DD-9 drum set. The DD-9 drum set was an electronic percussion drum with four touch sensitive drum pads and one built-in speaker. This item was marketed to children, and had the capability to produce special effect sounds for a monkey, horse, cat, dog, and others. The importer proposed that the DD-9 drum set was properly classified under heading 9503, HTSUS, as a toy musical instrument. However, CBP instead classified the article under heading 9207, HTSUS, as a musical instrument. CBP found that the DD-9 drum set had top sound quality, that the article was not flimsy, and contained some sophisticated electronic components. See HQ W967583.
The “mi JamTM drummer” is more like the products considered in NY M86122 and NY L85012, and is unlike the DD-9 product considered in HQ W967583. It is a somewhat flimsy plastic article, which can be used to simulate the sounds that a real drum kit would make. According to an independent review of b2’s product line, the “mi JamTM drummer” is “awkward to hold” and “it is not completely flawless because it does not follow the direct commands of a real drum set. Also, the timing is off.” It is marketed to children ages 8 to 18, and sold in stores that traditionally sell toys and gifts. In terms of the Ideal Toy test, the utility purpose of the “mi JamTM drummer” is incidental to its amusement value. Its principal use, within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS, and Minnetonka, is use as a toy musical instrument. The article is properly classified under heading 9503, HTSUS, specifically under 9503.00.00, HTSUS, which provides in pertinent part for: “[O]ther toys; …”. See also General EN(b) to Heading 92.07; EN(D)(xii) to Heading 95.03.
Furthermore, because the article is properly classified under heading 9503, HTSUS, Note 1(p) to Section XVI, HTSUS, operates to preclude classification under headings 8519, 8522, and 8543, HTSUS.
HOLDING:
By application of GRI 1, the Model 36909 “mi JamTM drummer” is classified under heading 9503, HTSUS, specifically under 9503.00.00, HTSUS, which provides in for “Tricycles, scooters, pedal cars 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 column one, general rate of duty is free.
Duty rates are provided for convenience only 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 www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY R04026, dated June 7, 2006, NY M83685, dated June 12, 2006, and NY M85350, dated July 27, 2006, are hereby MODIFEID in accordance with the above analysis. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division