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
mouth‑blown 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 mouth‑blown 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. 89‑80, 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 spring‑operated (clockwork)
> motor which is wound with a key or directly by a handle. In some
> types, the cylinder may be replaced by a sheet‑metal 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 mouth‑blown 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 mouth‑blown sound
signaling instruments: music boxes."

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