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HQ 955574

June 3, 1994

CLA-2 CO:R:C:M 955574 KCC


TARIFF NO.: 9208.10.00

Mr. Gene Schwam
Aircargo Brokerage Co.
2541 N. W. 72nd Avenue
Miami, Florida 33122

RE: Wind-up Musical Santa Claus on a See-Saw; music box; EN 92.08; HRL 081657; HRL 072786; 9505; festive article

Dear Mr. Schwam:

This is in response to your letter dated December 14, 1993, regarding the tariff classification of a wind-up musical Santa Claus on a see-saw under the Harmonized Tariff Schedule of the United States ("HTSUS"). A sample was submitted for our examination. We regret the delay in responding to your request.


The article is a wind-up musical Santa Claus on a see-saw ("musical Santa Claus see-saw"). The base is composed of ceramic and is circular measuring approximately 4 1/2 inches in diameter and 2 1/2 inches in height. The base contains the wind-up musical movement and holds a ceramic see-saw approximately 5 inches in length. A ceramic figure of Santa Claus is at one end of the see- saw and a ceramic decorated Christmas tree is at the other end. When the musical movement is activated it plays "Jingle Bells" and moves the see-saw up and down.

You claim that the musical Santa Claus see-saw should be classified as a festive article under heading 9505, HTSUS, because its essential character is that of a Christmas decoration which would only be used during the Christmas season.


Where is the wind-up musical Santa Claus on a see-saw classified under the HTSUS?


The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...." The competing subheadings are as follows:

9208.10.00 Music 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.

9505.10.50 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof...Articles for Christmas festivities and parts and accessories thereof...Other...Other....

In this case, the musical Santa Claus see-saw is a ceramic figurine mounted over a music box. Music boxes are classifiable under subheading 9208.10.00, HTSUS. In understanding the language of the headings of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 92.08 (pgs. 1561-1562) states that 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 then 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.

Customs has classified music boxes with earthenware and ceramic figurines in item 725.50, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to subheading 9208.10.00, HTSUS). See, Headquarters Ruling Letter (HRL) 081657 dated December 1, 1988, and HRL 072786 dated September 21, 1983.

Congress has indicted that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, stated that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576, 100th cong., 2d Sess. 548, 550 (1988). Since the subject nomenclature in the TSUS (item 725.50) and the HTSUS (subheading 9208.10.00) are similar, because they are the respective tariff provisions which cover music boxes, and the articles at issue in the above cited HRLs and the instant case are similar, we find the TSUS rulings instructive.

Therefore, we are of the opinion that the musical Santa Claus see-saw is classified as a music box under subheading 9208.10.00, HTSUS. We note that EN 92.08 states that:

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.

EN 92.08 appears to imply that a music box with ceramic figurine which is essentially utilitarian or ornamental in function is excluded from classification as a music box under subheading 9208.10.00, HTSUS. However, strictly following the ENs would exclude the typical ceramic figurine music boxes from classification in the HTSUS as music boxes. Whereas, music boxes with figurines made from other material would be classified as music boxes under subheading 9208.10.00, HTSUS.

An examination of the above-reference EN 92.08 language indicates that articles, such as clocks, furniture, vases and ceramic figurines, with music boxes contained in the body of the articles are excluded from classification as music boxes and are classified as if they did not contain a music box. The musical Santa Claus see-saw is not the type of article meant to be excluded from classification as a music box by EN 92.08. The musical Santa Claus see-saw is exactly the type of music box classifiable under subheading 9208.10.00, HTSUS.

Heading 9505, HTSUS, which provides for, inter alia, festive, carnival and other entertainment articles. The musical Santa Claus see-saw is not classified under this heading because, as discussed above, it is specifically classified as a music box under subheading 9208.10.00, HTSUS. Accordingly, the musical Santa Claus see-saw is not classifiable under heading 9505, HTSUS.


The wind-up musical Santa Claus see-saw is classified under subheading 9208.10.00,HTSUS, as a music box, dutiable at the Column 1 rate of 3.2 percent ad valorem.


John Durant, Director

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