CLA-2 RR:CTF:TCM 967307 KBR
Port Director
Bureau of Customs & Border Protection
P.O. Box 619050 7501 Esters Blvd., Suite 160
Irving, TX 75063
RE: Protest 5501-04-100182; Hand Bells
Dear Port Director:
This is our decision on protest 5501-04-100182, filed by counsel on behalf of Rhythm Band Instruments, Inc., against your action regarding the classification of sets of hand bells under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The goods were entered on July 25, 2003, and were liquidated on June 4, 2004. This protest was timely filed on August 13, 2004.
FACTS:
The products are several sets of hand bells. Each hand bell is approximately 5 inches tall. The hand bell is brightly enameled with a handle that has a note color and number on the end for easy recognition. The hand bells are sold in 5-note sets, 8-note sets, 13-note sets and 20-note sets. The 13-note set consists of an 8-note set with an add-on set of 5 bells. The 20-note set has a range from Low A to High E. The protestant states the market for the hand bells is preschool and elementary school music programs and churches, but the hand bells are also sold to the general public.
You classified the hand bells in subheading 9206.00.8000, HTSUSA, which provides for “Percussion musical instruments (for example, drums, xylophones, cymbals, castanets, maracas): Other.” The protestant claims that the hand bells should be classified in subheading 9206.00.6000, HTSUSA, as “Percussion musical instruments (for example, drums, xylophones, cymbals, castanets, maracas): Sets of tuned bells known as chimes, peals or carillons.”
ISSUE:
Whether the sets of hand bells are classified as chimes, peals or carillons?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA 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 HTSUSA provisions under consideration are as follows:
8306 Bells, gongs and the like, nonelectric, of base metal; statuettes and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; and base metal parts thereof:
8306.10.0000 Bells, gongs and the like, and parts thereof
* * * * *
9206 Percussion musical instruments (for example, drums, xylophones, cymbals, castanets, maracas):
9206.00.6000 Sets of tuned bells known as chimes, peals or carillons
9206.00.8000 Other
In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Bells may be classified within both headings 8306 and 9206, HTSUSA. The Bureau of Customs and Border Protection (“CBP”) has previously classified a type of hand bell in subheading 8306.10.0000, HTSUSA. See NY E85458 (October 28, 1999). However, bells classified in heading 8306 are distinguished from bells classified in heading 9206 because of their lack of tuning. The ENs for heading 8306 show that the types of bell included in this heading are not precision crafted bells, but are bells such as cow bells or bicycle bells. The ENs for heading 8306 specifically exclude “Carillons and gongs, of the nature of musical instruments of 92.06 or 92.07.” Bells which are tuned to a particular note are considered a “percussion musical instrument”, which is more specifically provided for in heading 9206. Therefore, because the instant hand bells are tuned to individual notes, they are classifiable in heading 9206, HTSUSA.
Review of both the HTSUS legal notes and the ENs for heading 9206, indicates that neither defines “chimes, peals or carillons.” The ENs do not define “carillons” but state that carillons for public buildings, suitable for producing music, are classified in heading 9206. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F. 2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F. 2d 1268 (1982). The term “carillon” is defined as “a set of stationary bells hung in a tower and sounded by manual or pedal action, or by machinery.” The Random House College Dictionary, p. 204, (1973). See also, The American Heritage Dictionary of the English Language: Fourth Ed., (2000) and www.dictionary.com.
Chimes are described as “A set of tuned bells used as an orchestral instrument.” The American Heritage Dictionary of the English Language: Fourth Ed., (2000). The Dallas Symphony Orchestra (www.dsokids.com) defines chimes as:
Chimes are a tuned instrument consisting of a set of 12 to 18 metal tubes hung from a metal frame. The metal tubes range from 1 to 2 ½ inches in diameter and from 4 to 6 feet in length. The chimes, or tubular bells, are struck with a mallet and sound like church bells when played. The longer the length of tube that is struck, the lower the pitch that is created.
See also www.treeworkschimes.com; www.lpmusic.com.
Three websites are instructive in defining all three terms: peals, chimes and carillons. The description of each of the terms in the websites, shows that they do not describe handheld bells but bells that are hung in groups in some sort of structure:
A manufacturers website, www.verdin.com, describes the three terms as:
Peals:
A peal is comprised of two to eight bells and is another popular arrangement for playing music in a church, college, or town square. Peals are often rung as a call to worship to mark the time of day. The melodious pealing sound is derived from an ever-changing pattern as bells ring together or singularly at pendulum rates. The most popular peal is the three-bell peal which sounds the first, third and fifth notes of a major chord.
Chimes:
Cast bell chimes create beautiful melodies that immediately enhance any community, church, university or commercial venue. Consisting of nine to 22 bells, chimes are usually arranged in a diatonic scale, which is similar to the black and white arrangement of black and white keys on a piano. As a result, tunes and melodies can be played in more than one key.
The most popular range for cast bell chimes is 14 bells, which allows most hymns and melodies such as "Silent Night" and "The Star Spangled Banner" to be played without alteration.
Carillons
Carillons offer listeners a diverse musical range comprised of at least two octaves of tuned bells. Cast bell carillons consist of 23 or more bells played from a keyboard console directly linked to bell clappers that allow for full musical expression.
Another manufacturer’s website, www.taylorbells.co.uk, describes the terms as:
a "ringing peal" comprises three, four or five bells rung at random often swung by electric motors and electronically controlled.
Chimes consist of up to and including 22 bells, enabling tunes to be played, the bells are hung for stationary striking and may be operated manually from a keyboard where levers (through a transmission system) pull wires attached to clappers, or from a piano type keyboard with electrical contacts which initiate electro magnetic hammers to strike on either the inside or outside of the bells.
Carillons consist of at least 23 bells, arranged chromatically, and may have as many as 77 bells. The heaviest bell, which is called the Bourdon, can range from 300 pounds to over 20 tonnes in weight. The manual action is very similar to that of a chime (described above) but is usually more refined and sophisticated.
The Tower Bell Homepage, www.home.swbell.net/csz_stl/towerbells/TowerBells.html#Section1, also describes the terms as multiple bells hung in a structure:
Carillons
Carillons are musical instruments made of at least 23 conventional tower bells which have been tuned so that they can be played together in harmony. The bells are hung fixed in a frame, or "dead", and are played by some kind of mechanism which operates internal clappers and/or external hammers. There are two varieties:
Traditional carillons use a keyboard with baton-shaped manual keys, a pedalboard, and "tracker" action (direct mechanical connection) for precise dynamic control and maximum musical potential.
Non-traditional carillons use electro-mechanical or electro-pneumatic mechanisms, driven by an electric keyboard and/or various kinds of automatic controls. Most have no capability whatsoever for musical dynamics. Still, they contain real bells, unlike the various electronic devices that attempt (unsuccessfully) to imitate bells.
Chimes
Chimes are smaller musical instruments (8 to 22 conventional tower bells, hung fixed) in which the bells may or may not have been tuned, but they approximate the diatonic or chromatic scales sufficiently well to be able to play tunes recognizably. Some are in fact tuned to the same precision as carillons, and thus can be used to play harmony as well as melody. Several different kinds of mechanisms have been used to play chimes, either manually or automatically, but in comparison to carillons there is less need to distinguish between traditional and non-traditional mechanisms. An additional function as a clock-chime is fairly common. Among older chimes in churches, the inclusion of one or more swinging bells is also fairly common.
Peals
A peal is a set of two or more bells hung for swinging in less than a full circle. Consequently, each bell swings at its own natural pendulum frequency, so that it appears to sound randomly with respect to the other bell(s) in the peal. In Canada and the USA, some churches have peals of two to five bells; in churches of continental Europe and Spanish-speaking countries, cathedrals and very large churches may have peals of more than a dozen bells. There is no prescribed relationship among the pitches of peal bells, though in the case of three or four they are often arranged in a major or minor chord.
The instant sets of hand bells are individual bells. Although the bells might be played at the same time, they are played individually by hand. They are not mounted together in any sort of frame or structure. Therefore, the hand bells do not fit the description of a peal, chime or carillon. Therefore, the sets of hand bells are classified in subheading 9206.00.8000, HTSUSA.
HOLDING:
In accordance with the above discussion the sets of hand bells are classified in heading 9206. They are provided for in subheading 9206.00.8000, HTSUSA, as “Percussion musical instruments (for example, drums, xylophones, cymbals, castanets, maracas): Other.” The 2003 column one, general rate of duty rate is 5.3% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division