# HQ 964332

July 24, 2001

**CLA-2** RR:CR:GC 964332 KBR

**CATEGORY:** Classification

**TARIFF NO.:** 9209.10.00

Mr. Dennis Heck, Import Compliance Manager

Yamaha Corporation Of America

6600 Orangethorpe Avenue, P.O. Box 6600

Buena Park, CA 90622-6600

**RE:** Electronic Metronomes of the ME Series, QT Series and YM2000

Dear Mr. Heck:

This is in regard to your letters to the Director, Customs National
Commodity Specialist Division, New York, dated May 12, 2000, and October
19, 2000, concerning the proper classification, under the Harmonized
Tariff Schedule of the United States (HTSUS), of electronic metronomes:
ME series, QT series and YM2000. Your letters were referred to this
office for reply. We regret the delay.

**FACTS:**

The subject electronic metronomes, which are made in Japan and China,
are digital quartz machines which emit sounds at various speed to
indicate the exact tempo at which a musical instrument should be played.
The ME are palm sized units with an LCD display. They have A and B-flat
tuning notes. The sound may be turned on or off. The QT1 series are
saucer-shaped with volume controls and two different beat sounds, and
have a red indicator light which flashes to the beat. The tempo can be
set from 40 to 208 beats per minute. The QT2 electronic metronomes are
arch-shaped with volume control, adjustable beat rhythms, reference
tones for tuning, sweeping red and green LED lights, a mute button, time
of day readout, and input and headphone jacks which allow use of
headphones to hear a beat superimposed on a performance. The YM2000
Multi electronic metronome is the size of an audio cassette. It produces
basic beat patterns or duplet, triplet and quintuplet beats as well as
30 rhythm patterns including rock, jazz, swing and tango, has a sweeping
LED tempo indicator, and produces a tuning note over a one octave range
(C4 to B4).

**ISSUE:**

What is the proper classification for electronic metronomes.

**LAW AND ANALYSIS:**

Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined according to the terms of the headings and
any relative section or chapter notes. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in accordance
with subsequent GRI.

In interpreting the headings and subheadings, Customs looks to the
Harmonized Commodity Description and Coding System Explanatory Notes
(EN). Although not legally binding, they provide a commentary on the
scope of each heading of the HTSUS. It is Customs practice to follow,
whenever possible, the terms of the ENs when interpreting the HTSUS.
*See* T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

9106 Time of day recording apparatus and apparatus for measuring,
recording or otherwise indicating intervals of time, with clock or watch
movement or with synchronous motor (for example, time registers,
time-recorders):

9209. Parts (for example, mechanisms for music boxes) and accessories
      (for example, cards, discs and rolls for mechanical instruments)
      of musical instruments; metronomes, tuning forks and pitch pipes
      of all kinds:

9209.10.00 Metronomes, tuning forks and pitch pipes

Metronomes are *eo nomine* provided for in subheading 9209.10.00, HTSUS.
The ENs for this subheading provides the following definition for
metronomes:

> Metronomes are small mechanical devices used to indicate the exact
> tempo in which a piece of music is to be played; they are generally
> contained in a pyramid shaped box and may be fitted with a bell. The
> main part is a beating rod pivoted at its lower end; the movement of
> the rod may be accelerated or retarded according to a scale located
> behind the bar.
>
> The group also includes metronomes used for industrial purposes; these
> are fitted with electrical contacts.

Although the definition provided in the ENs describes metronomes as
"mechanical", we do not find that the subject electronic metronomes are
excluded. First, the language of the heading specifically includes
"metronomes, tuning forks and pitch pipes **[of all
kinds]{.underline}**" (emphasis added). Second, as noted above, the ENs
are instructive for interpreting the HTSUS and describe the scope of the
heading, but are not legally binding. Third, it is important to
understand that the HTSUS is meant to be a "living" document. The court
stated in *Borneo Sumatra Trading Co., Inc. v. United States*, 311 F.
Supp. 326, 338-39 (Cust. Ct. 1970), the "tariff acts are 'written for
the future,' and that certain articles are deemed to be technological
advancements or commercially sophisticated versions of *eo nomine*
provisions for merchandise." Citing *R.J. Suanders & Co., Inc. v. United
States*, 49 CCPA 87, C.A.D. 801 (1962). *See also, Simmon Omega, Inc. v.
United States,* 83 Cust. Ct. 14, 36-7 (1979) ("it is inconceivable that
Congress would have intended to foreclose from classification ... future
innovations....") This is echoed by the court in *Terumo Corp. v. United
States*, 8 C.I.T. 44, 45 (1984), where the court stated, "An *eo nomine*
provision, expressed without limitation or a demonstrated contrary
legislative intent, judicial decision, or administrative practice, will
include all forms of the article, including improved versions
originating since the legislative enactment. Congress legislated for the
future and is presumed to have intended to cover all forms of the
article as they are developed."

While we note that the description in the ENs of a metronome indicates
it is a "mechanical device", the court has held that simply electrifying
a previously manual article does not remove it from its existing
classification. "It is evident that the application of electrical
operation to small articles in common use, such as various kinds of
brushes, is going to make them more complicated in structure.... The
brush is still a brush." *Nomura (America) Corp. v. United States,* 299
F. Supp. 535, 540 (Cust. Ct. 1969). Further, "Legislative history may be
used for the purpose of ascertaining Congressional intent where the
statute is ambiguous, but it should not be used to introduce ambiguity
where the language is clear." *Terumo Corp., supra* at 46. We find that
electronic metronomes are classifiable in the *eo nomine* provision for
metronomes, subheading 9209.10.00, HTSUS.

The models other than the QT1 also produce tones electronically for
tuning purposes. Subheading 9209.10, HTSUS provides for metronomes,
tuning forks and pitch pipes. Therefore, articles which combine the
functions of each named article in the subheading are also classified
within that same subheading. In addition, the QT2 model contains a clock
function, which function is covered by heading 9106, HTSUS. By
application of GRI 3(b), the clock and combination metronome/tuning
device are a composite good. Pursuant to GRI 3(b), composite goods shall
be classified based on the component which gives the good its essential
character. As the QT2 is advertised as a metronome with additional
functions, we believe the essential character of the QT2 is provided by
the metronome.

**HOLDING:**

Electronic metronomes, ME series, QT series and YM2000, are classifiable
in subheading 9209.10.00, HTSUS, as metronomes, tuning forks and pitch
pipes.

Sincerely,

John Durant, Director

Commercial Rulings Division