HQ 954858

May 6, 1994

CLA-2 CO:R:C:M 954858 RFA

CATEGORY:Classification

TARIFF NO.: 9207.90.00

District Director of Customs

610 S. Canal Street

Chicago, IL 60607

RE: Protest 3901-93-101096; Acoustic Guitars, Fitted With

Electrical Amplifying Devices; General EN to Chapter 92;

9202.90.40; Marubeni-Iida (America), Inc. v. United States

Dear District Director:

The following is our decision regarding Protest 3901-93-101096, which
concerns the classification of acoustic electric

guitars under the Harmonized Tariff Schedule of the United States

(HTSUS).

FACTS:

The subject Washburn International guitars, which were made

in Korea, are grouped in series and categorized according to

their design and use. All of the guitars with an AB prefix are

electric acoustic bass guitars. All of the guitars with an EA

prefix are electric acoustic guitars. Model numbers for electric

dreadnought guitars have either a prefix of D or DC and a suffix

which includes either E or CE. The difference between the EA and

D/DC models are that the D/DC models provide an extreme groove at

the base of the guitar neck to give the musician greater access

to the frets and fingerboard. All of the models are made with

sound boxes \[hollow-body\] and equipped with an electrical

amplifying device system. 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 April 9, 1993, under subheading 9202.90.40, HTSUS,

as other string musical instruments, valued over \$100 each. The

protest was timely filed on June 15, 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 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

electric acoustic guitars, electric dreadnought guitars, and

electric acoustic bass guitars, which are equipped with

electrical amplifying devices, are classifiable under subheading

9207.90.00, HTSUS, as entered.

HOLDING:

For the foregoing reasons, the subject electric acoustic

guitar models, the electric dreadnought guitar models, and the

electric acoustic bass guitar models are classifiable under

subheading 9207.90.00, HTSUS, as other electrical musical

instruments.

You should grant the protest. 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