CLA-2 CO:R:C:M 955272 RFA
District Director of Customs
1215 Royal Lane
P.O. Box 619050
Dallas/Fort Worth, TX 75261
RE: Protest 5501-93-100312; Acoustic Guitars, Fitted With
Electrical Amplifying Devices; General EN to Chapter 92;
Marubeni-Iida (America), Inc. v. United States
Dear District Director:
The following is our decision regarding Protest 5501-93-
100312, which concerns the classification of acoustic electric
guitars under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The subject acoustic guitars, identified as Charvel model
125S, 125SE, 150SC, 625C, 625D, and 625F, were made in Korea.
All of the guitars, except for models 125S, 150SC and 625F, are
made with sound boxes [hollow-body] and equipped with electrical
amplifying devices. Models 125S and 150SC are made only with a
sound box and have no electrical amplifying devices. Model 625F,
with no sound box [solid-body], is equipped with an electrical
amplifying device. The guitars with an electrical amplifying
device have either slide or knob controls to affect changes in
the tonal quality.
The merchandise was entered under subheading 9207.90.00,
HTSUS, as other musical instruments, the sound of which is
produced, or must be amplified, electrically. The entry was
liquidated on September 10, 1993, under subheading 9202.90.40,
HTSUS, as other string musical instruments, valued over $100
each. The protest was timely filed on September 14, 1993.
The subheadings under consideration are as follows:
9202.90.40: Other string musical instruments. . .:
[o]ther: [g]uitars: [o]ther. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 13.0 percent ad valorem.
9207.90.00 Musical instruments, the sound of which is
produced, or must be amplified, electrically
(for example, . . . guitars . . . ): [o]ther
. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 6.8 percent ad valorem.
ISSUE:
Whether the acoustic guitars, fitted with electrical
amplifying devices are classifiable as acoustical or electric
guitars under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, the ENs provide a commentary on the scope of
each heading of the HTSUS and are generally indicative of the
proper interpretation of these headings. General EN to Chapter
92, page 1555, provides in part:
Some musical instruments (pianos, guitars, etc.)
may have an electrical sound pick-up and amplifying
device; they nevertheless remain classified in their
respective headings in this Chapter, provided that,
without the electrical equipment, they can still be
used like the similar conventional-type instruments.
The protestant argues that the guitars should be classified
under heading 9207, HTSUS, because they are equipped with
electrical amplifying devices, and they are incapable of being
played without the amplification.
In Marubeni-Iida (America), Inc. v. United States, 64 Cust.
Ct. 452, C.D. 4019 (1970), the court addressed the issue of
classification of solid-body electric guitars and hollow-body
electric guitars under the Tariff Schedules of the United States
(TSUS), the precursor to the HTSUS. Under the TSUS, the term
"electronic musical instruments" was defined as follows:
all musical instruments in which the sound is generated
electrically, and conventional-type instruments not
suitable for playing without electrical amplification,
but the term does not include conventional-type
instruments, fitted with electrical pick-up and
amplifying devices, when the instrument is suitable for
playing without such amplification.
The court in Marubeni determined that the top of the solid-
body guitar played no part in producing sound because it did not,
and was not designed to, vibrate. The court also found that the
purpose of the hollow-body guitar is to make the instrument
lighter and to improve appearance. Sound in such guitars is
produced electronically by the vibrations of steel strings, which
is registered in an electronic device called a "pick up" and
circulated through the electronic system. The court further
determined that the hollow-body electric guitar without
amplification, had poor tonal quality, making it unusable except
for practice. Based upon this information, the court held that
both types of guitars met the definition of the term "electronic
musical instruments" and were classifiable under item 725.45,
TSUS.
Under the TSUS, the court consistently held that acoustic
guitars fitted with amplification devices were classifiable under
item 725.45, TSUS (the precursor provision to subheading
9207.90.00, HTSUS). See Astra Trading Corp. v. United States, 69
Cust.Ct. 366 (1972); D.H. Baldwin Co. v. United States, 66
Cust.Ct. 684 (1971). Congress has indicated that earlier rulings
must not be disregarded in applying the Harmonized Code. The
conference report to the Omnibus Trade Bill states that on a case
by case basis prior decisions should be considered instructive in
interpreting the HTSUS, particularly where the nomenclature
previously interpreted in those decisions remains unchanged and
no dissimilar interpretation is required by the text of the
HTSUS. H.Rep No. 100-576, 100th Cong., 2D Sess. 548 (1988) at
550.
The description for musical instruments, the sound of which
is produced, or amplified, electrically under HTSUS does not
materially differ from item 725.45, TSUS, which provides for
electronic musical instruments. Therefore, we find that the
acoustic guitars (models 125SE, 625C, and 625D), equipped with
electrical amplifying devices, are classifiable under subheading
9207.90.00, HTSUS, as entered.
Furthermore, based upon the principle of GRI 1, the acoustic
guitars, models 125S and 150SC, which are made only with a sound
box and have no electrical amplifying devices, are classifiable
under subheading 9202.90.40, HTSUS. Guitar, model 625F, which is
equipped only with an electrical amplifying device, is
classifiable under subheading 9207.90.00, HTSUS.
HOLDING:
For the foregoing reasons, acoustic guitar models 125S and
150SC are classifiable under subheading 9202.90.40, HTSUS, as
other string musical instruments. The guitar models 125SE,
625C, 625D and 625F, fitted with electrical amplifying devices,
are classifiable under subheading 9207.90.00, HTSUS, as other
electrical musical instruments.
You should grant the protest for all models, except for
models 125S and 150SC. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision, together with the
Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division