HQ 0089831 - Musical flag is an electromechanical device. Music box; electrical good incorporating mechanical features. - United States International Trade Commision Rulings

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HQ 089831

October 4, 1991

CLA-2 CO:R:C:T 089831 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.6000

Mr. Alexander G. Arroyos
President
Dynamic Ocean Services International, Inc. P.O. Box 53538
Houston, TX 77052

RE: Musical flag is an electromechanical device. Music box; electrical good incorporating mechanical features.

Dear Mr. Arroyos:

This is in reply to your letters of May 13, 1991, and May 28, 1991. Those letters concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a musical flag, produced in Spain. Please reference your client Roca Comercio Exterior, S.A. de C.V. of Mexico.

FACTS:

The merchandise at issue, described as a "musical flag," consists of a 17" flag pole, a 10" x 4" textile U.S. flag, a 5" in diameter by 3" high plastic base with a musical mechanism and a battery-powered motor and gear mechanism to raise the flag. The musical mechanism consists of a small disk, similar to a record album, which, when spun, is accessed via a stylus. The overall height is 20". By pressing the button on the plastic base, the flag is raised to the top of the pole while the musical mechanism plays the Star Spangled Banner.

Your inquiry as to the correct country of origin marking will be responded to, in a separate letter, by our Value and Marking Branch.

ISSUE:

Whether the musical flag is a music box under the HTSUSA?

LAW AND ANALYSIS:

Heading 9208, HTSUSA, provides for, inter alia, music boxes. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the

Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading states:

Musical boxes ... 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 by 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 such modules.

While the musical mechanism in the merchandise at issue is similar to the disc description in the Explanatory Note, supra, is clear that the musical flag as a whole is essentially ornamental in function. The musical portion only comes into "play" when the button is pushed; at all other times, the flagpole provides a decorative and patriotic function. It is our opinion, therefore, that classification in heading 9208, HTSUSA, is precluded.

Heading 8543, HTSUSA, provides for electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, and parts thereof. The EN to this heading states that included herein are:

(13) Electronic musical modules for incorporation in a wide variety of utilitarian or other goods, e.g., wrist watches, cups and greeting cards. These modules usually consist of an electronically integrated circuit, a resistor, a loudspeaker and a mercury cell. They contained fixed musical programmes.

This does not describe the musical flag at issue. The EN to this heading also states:

Most of the appliances in this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors, etc.) operating wholly electrically. However, the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.

The musical flag is an electrical good incorporating mechanical features; however, these mechanical features (the gear mechanism raising of flag) are not subsidiary to the electrical function of the appliance (powering the musical module and the gears. Therefore, classification in this heading is also precluded.

Heading 8479, HTSUSA, provides for machines and mechanical devices, having individual functions, not specified or included elsewhere in this chapter, and parts thereof. The EN to this heading states:

This heading is restricted to machinery having individual functions, which:

(a) Is not excluded from this
Chapter by the operation of any Section or Chapter
Note.
and (b) Is not covered more specifically by a heading in any other Chapter in the
Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of funct- ioning, des- cription or type.
and (ii) No other heading covers it by
reference to its use or to the industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such head- ings
(general purpose machines).

... [T]he following are to be regarded as having "individual functions":

(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.

This broad description, in our opinion, provides for the musical flag. It is therefore classifiable in heading 8479, HTSUSA.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 8479.89.6000, HTSUSA, as machines and mechanical devices, having individual functions, not specified or included elsewhere in this chapter; parts thereof, other machinery and mechanical appliances, other, electromechanical appliances with self-contained electric motor, other. The applicable rate of duty is 4.2 percent ad valorem.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

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