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HQ 956776



August 2, 1994

CLA-2 CO:R:C:M 956776 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.95

District Director
U.S. Customs Service
1000 2nd Avenue, Room 2200
Seattle, WA 98104

RE: IA 41/94; Electronic Chirping Bird; Battery Operated Integrated Circuit Module; Explanatory Notes 3(b)(VIII), 85.43, and 92.08(A); GRI 3(b); HQ 951734; Music Box; 9208.10.00

Dear District Director:

This is in response to your memorandum of June 28, 1994 (CLA 2-85 SE:C:D SDB), requesting internal advice concerning the classification of an electronic chirping bird under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of an electronic chirping bird. The bird-shaped figure, containing a battery operated integrated circuit module, is housed in a plated steel cage. When a user claps or whistles, or strokes the back of the bird, the integrated circuit module within the bird creates chirping sounds.

The subheadings under consideration are as follows:

9208.10.00: [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 . . . : [m]usic boxes.

The general, column one rate of duty for goods classifiable under this provision is 3.2 percent ad valorem.

8543.80.95: [e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther machines and apparatus: [o]ther:
[o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.9 percent ad valorem.

ISSUE:

Whether the electronic chirping bird is classifiable under subheading 9208.10.00, HTSUS, as a music box, or under subheading 8543.80.95, HTSUS, as an other electrical apparatus, not specified elsewhere in chapter 85, 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 is determined according to the terms of the headings and any relative section or chapter notes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may utilized. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 92.08(A) (pp. 1561-1562) states:

(A) MUSICAL INSTRUMENTS NOT FALLING IN ANY OTHER HEADING OF THIS CHAPTER

These include:

(1) Musical boxes. These consist of small mechanical movements playing tunes automatically, . . .

(4) Mechanical singing birds. . .

Although the wording of subheading 9208.10.00, HTSUS, and Explanatory Note 92.08(A) appear to describe the subject merchandise, the electronic chirping bird cannot be considered either a music box or a mechanical singing bird because it does not contain any mechanical movements. The bird-shaped figure contains an integrated circuit module, however, it does not operate through mechanical means. Therefore, it is our position that the merchandise is precluded from classification under subheading 9208.10.00, HTSUS.

Because the merchandise is a composite good made up of different components which are described under different provisions of the HTSUS, we must consult GRI 3(b), which states that:

[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note 3(b)(VIII) (p. 4) states that:

[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In part, Explanatory Note 85.43 (pp. 1402-1403) states that:

[t]his heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. . .

The heading includes, inter alia:

(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 electronic integrated circuit, a resistor, a loudspeaker and a mercury cell. They contain fixed musical programmes.

We find that the electronic integrated circuit module contained within the bird-shaped figure is similar to the above described modules, and would therefore be described under heading 8543, HTSUS. It is also our position that the module imparts the essential character of the electronic chirping bird. The module functions in the primary role in relation to the use of the merchandise. This product will be purchased because the bird- shaped figure can make chirping noises. The producer of the merchandise created several ways in which a user may initiate the chirping. The sound-activated chirping feature enhances the display realism of the decorative object. It is our position that a purchaser will purchase this product over one which is silently decorative because of the chirping sound. See HQ 951734, dated February 19, 1993, in which we held that a composite good containing an electronic module was classifiable under heading 8543, HTSUS. See also HQ 950880, dated March 12, 1992.

Because the merchandise is not classifiable elsewhere under the HTSUS, the electronic chirping bird is classifiable under subheading 8543.80.95, HTSUS.

HOLDING:

The electronic chirping bird is classifiable under subheading 8543.80.95, HTSUS, as an other electrical apparatus, not specified elsewhere in chapter 85, HTSUS.

This decision should be mailed by your office to the importer no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling 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

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