CLA 2 RR:CR:GC 962597 JGB
Port Director
U.S. Customs Service
Attn.: Protest Office, Room 200
425 Canal Street
New Orleans, LA 70130
RE: Protest 2002 98 100485; Music Boxes with a Christmas motif; festive articles
Dear Director:
This is a decision on Protest 2002 98 100485 against your decision in the classification of various wind-up musical figures with a Christmas motif under the Harmonized Tariff Schedule of the United States (HTSUS). The entry was made July 16, 1997, liquidated May 29, 1998, and the protest timely filed on June 27, 1998.
FACTS:
The merchandise at issue in this protest is imported by Heritage House, Inc. and is marketed and sold during the Christmas selling season. These poly resin figurines contain mechanical musical mechanisms that play Christmas songs. The base that contains the musical apparatus is adorned with holly and berries, a wreath with red bow and bells, and is trimmed in gold color.
This decision covers 5 items, described as follows:
Item # HHOP 0245942, Puppy. A puppy with a red bow around its neck sits on a bed of red bows, gold bells and holly. It plays the tune “White Christmas.”
Item # HHOOP 0246965, Lamb. A lamb with a red bow around its neck stands on a bed of holly, berries and gold bells. A red banner draped over its back displays the word “Joy.” At its left rear foot is a wrapped Christmas present. The article plays the tune “O Holy Night.”
Item # HHOP 0246973, Cat. A cat with a red bow with a gold bell around its neck is sitting on a bed of holly, berries, and bows. Next to the cat are two wrapped Christmas presents and two Christmas ornaments. The article plays the tune “Winter Wonderland.”
Item # HHOP 0247015, Rabbit. A rabbit with a wreath of holly and berries, along with a red bow around its neck, is setting on a bed of holly, berries, gold bells, and red ribbons. The article plays the tune “ Silver Bells.”
Item # HHOP 027165, Deer. A deer with a red ribbon around its neck and a red banner inscribed with the word “NOEL” draped over its back is standing on a bed of pine needles, pine cones, gold bells, and red bows.
You classified the articles in subheading 9208.10.0000,HTSUS, the provision for “Music 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.”
The protestant claims classification for each of the articles in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”
ISSUE:
Whether the subject articles are classified within heading 9208, HTSUS, as music boxes, or within heading 9505, HTSUS, 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 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 articles contain a small mechanical movement, play tunes and are incorporated in a case, they meet this definition of a music box. However, the protestant argues that the articles can also be described as festive articles. We do not disagree. Numerous Headquarters and New York Ruling Letters have classified poly resin figurines presenting an accepted symbol of a recognized holiday as festive articles. Such articles did not have wind-up mechanical movements. See Headquarters Ruling Letters (HQ) 962249, dated August 12, 1999; HQ 962696, dated February 28, 2000, and HQ 962567, dated March 31, 2000. As the wind-up music box with a poly resin figurine 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) . . . These 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) If 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 articles, the term “music box” describes the articles by name and the term “festive article” describes them by the class of various articles to which they belong. As the term “music box”, not “festive article”, more clearly identifies the subject articles, the wind-up music boxes with a poly resin figurine on top are classifiable as a music box, not as 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 predecessor to the HTSUS, the Tariff Schedules of the United States items under consideration were:
725 [o]ther musical instruments:
725.50 [m]usic [b]oxes
* * * * *
737 [t]oys, and parts of toys, not specially provided for:
737.80 [t]oys having a spring mechanism
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 articles indicates that they are classifiable as music boxes. The “function” of the poly resin figurines as well as the molding in the base of the article is solely that of design and appearance and is subordinate and incidental to the function of the music box. The figurines and molding do not serve a separate commercial function or value of their own when combined with the music box.
The 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. . . .
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 the protestant’s 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 articles under consideration do not have such a utilitarian or ornamental function as their 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 the protestant states its belief that the decision in Midwest of Cannon Falls, Inc. v. United States, 122 F. 3d. 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 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 9505 classification was more specific, based on “all the factors and circumstances.”
A similar analysis applies in this case. That is, when the term “festive article” in heading 9505 is compared to the term “music box” in heading 9208, the latter is more specific for tariff purposes..
HOLDING:
The wind-up music box with a poly resin figure on top 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.”
The protest should be DENIED. The entries should be reliquidated according to the classification as indicated herein.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, 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