Protest 3501-97-100140; Musical books

HQ 962407 January 20, 1999 CLA-2 RR:CR:GC 962407 MMC CATEGORY: Classification TARIFF NO.: 9505.10.2500; 9208.10.0000 Port Director of Customs 110 S. 4th Street Minneapolis, MN 55401 RE: Protest 3501-97-100140; Musical books Dear Port Director: This is our decision on Protest 3501-97-100140, concerning your action in classifying and assessing duty on articles identified as “musical books” under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject articles are described as animated music boxes. Item # 49145, (also referenced as # 49115 and 491145) identified as “A Christmas Carol Animated Music Box ‘We Wish You A Merry Christmas,’” measures approximately 12 by 8 by 4 inches. It is shaped like a book and opens and closes by a hinge attached to the front cover. The outside of the “book” is covered with red and black faux leather which is trimmed with imitation gold. The “spine” has gold lettering which reads “A Christmas Carol Charles Dickens. ” Opening the book reveals a detailed scene from the story containing several animated figurines. The figurines move to the tune “We Wish You A Merry Christmas” which is a non-mechanical musical movement. The article operates on batteries. Item # 49123, identified as “A Christmas Carol Animated Music Box ‘God Rest Ye Merry Gentleman,’” is identical in design and construction except that it has a different theme, scene and has a wind-up mechanical musical mechanism. Outside dimensions are approximately 9 by 6 by 4 inches. Protestant was directed to enter item # 49145 under subheading 8479.90.8090, HTSUS, which provides for, “[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: [p]arts: [o]ther: [o]ther.” Item # 49123 was entered under 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 mouthblown sound signaling instruments: music boxes.” Protestant asserts that the articles are classifiable under subheading 9505.10.2500, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther." The entries were made in August and September of 1993 and May of 1994. They were liquidated on August 8, 1997. A protest was timely filed on October 30, 1997. ISSUES: Whether a motorized music box is classifiable as an “other” machine, whether a wind-up music box is classifiable as a music box or whether both are classifiable as festive articles. 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 HTSUS headings under consideration are as follows: 8479 [m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof 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 mouthblown sound signaling instruments 9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof Concerning item # 49145, Note 1(p) to Chapter 84 states that: “[t]his chapter does not cover: (p) [a]rticles of chapter 95. Therefore, if item # 49145 is described by both headings 8479 and 9505, HTSUS, it is classifiable in heading 9505 by operation of Note 1(p) to Chapter 84. In Midwest of Cannon Falls, Inc. v. United States, Court,122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUS, as a “festive article” when the article, as a whole: 1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday and 3. Is associated with or used on a particular holiday Additionally, the Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, for those articles involving holidays, and symbols not specifically recognized in Midwest, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article is of a class or kind of good known as "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. Item # 49145 has no precious or semi-precious stones, metals or metal clad with precious metal. It functions primarily as a decoration used in celebration of and for entertainment on a particular holiday; Christmas. Customs has always recognized Christmas as a festive holiday for tariff purposes. Furthermore, we recognize that certain table-top musical decorations, namely those which contain non-mechanical musical movements are, in general, articles which may be of a class or kind of decoration considered a “festive article” for tariff purposes (See HRL 960996 dated July 23, 1998). Application of the Carborundum factors will determine whether this particular table-top musical decoration belongs to the class. Application of the Carborundum factors to this particular table-top musical decoration indicates that it falls within the scope of the class, "festive articles." The physical appearance of the decoration, namely its scene from a famous Christmas story and its accompanying Christmas carol, indicate its use with the Christmas holiday. Furthermore, it is used in the same manner as merchandise which defines the class, in that it is a decoration which incorporates various symbols of a recognized holiday season. As such, it is classifiable under heading 9505, specifically, subheading 9505.10.25, HTSUS, as “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [c]hristmas ornaments: [o]ther.” Cited in the discussion of the potential classification of item # 49145 was Headquarters Ruling Letter (HRL) 089831 dated October 4, 1991, in which an article identified as a “musical flag” was classified in heading 8479, HTSUS. The musical flag consisted of a 17 inch flag pole that raised the American flag as the “Star Spangled Banner” played. Section 152.16 of the Customs Regulations (19 CFR §152.16), states, in pertinent part, that: § 152.16 Judicial changes in classification The following procedures apply to changes in classification made by decisions of either the United States Court of International Trade or the United States Court of Appeals for the Federal Circuit...: (a) * * * (e) Other decisions adverse to Government. Unless the Commissioner of Customs otherwise directs, the principles of any court decision adverse to the Government...shall be applied to unliquidated entries and protested entries which have not been denied in whole or in part and in which the same issue is involved as soon as the time within which an application for a rehearing or review may be filed has expired without such application having been made. The judicial decision in Midwest was adverse to the government and had a direct effect on the classification of merchandise which was the subject of HRL 089831. Under the Midwest analysis this musical flag would be considered classifiable as a 4th of July festive article in heading 9505, HTSUS. Therefore, HRL 089831 was effectively revoked by Midwest. Since HRL 089831 has already been effectively revoked by judicial decision, publication of its revocation in the Customs Bulletin was not required. 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 item # 49123 contains a small mechanical movement, plays tunes and is incorporated in a case, it meets this definition of a music box. However, Protestant argues that the article can also be described as a festive article. We do not disagree. In HRL 962306 dated January 7, 1999, we held that a similar wind up music box with an incorporated glass water globe was described by both heading 9208, HTSUS, which provides, in pertinent part for music boxes, and heading 9505, HTSUS, which provides, in pertinent part, for festive articles. As such the musical water globes were not classifiable according to GRI 1. Rather, the articles were subject to GRI 3(a), which 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... Applying this analysis to item # 49123, 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 item # 49123, it is classifiable as a music box, not a festive article. As was indicated in HRL 962306, 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). The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise under the System. See, T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). Protestant argues 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. 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 them to vibrate and produce the notes. The components are mounted on a plate and the cylinder is rotated either by a springoperated (clockwork) motor which is wound with a key or directly by a handle. In some types, the cylinder may be replaced by a sheetmetal disc made on the hill and dale principle. 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 that such a reading of EN 92.08 is possible. 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, Protestant states that the decision in 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 determining 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 eo nomine provision and that “ornament” was a use provision. It then held that: “... a use heading is generally more specific that an eo nomine one.” However, rather than adopting a rule for deciding between an eo nomine and a use provision under the HTSUS, the Court chose to determine that the heading 9505 classification was more specific based on “all the factors and circumstances.” We have performed a similar analysis in this case. That is, we have compared the term “festive article” in heading 9505 to the term “music box” in heading 9208 and found the latter to be more specific for tariff purposes. Finally we note that in a February 15, 1996, published decision ruling upon articles to be considered in the Midwest case, the Court ordered that the classification of a porcelain Santa on a chimney music box was to be dismissed from consideration at trial as no such merchandise was at issue therein. As the term “music box”, not “festive article”, more clearly identifies item # 49123, it is classifiable in subheading 9208.10.00, HTSUS, as “[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 mouthblown sound signaling instruments: music boxes.” HOLDING: The protest should be ALLOWED in part and DENIED in part. Item # 49145, “A Christmas Carol Animated Music Box ‘We Wish You A Merry Christmas,’” is classifiable under subheading 9505.10.25, HTSUS, as a “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [c]hristmas ornaments: [o]ther.” Item # 49123, “A Christmas Carol Animated Music Box ‘God Rest Ye Merry Gentleman,’” 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 mouthblown sound signaling instruments: music boxes.” In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director Commercial Rulings Division