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HQ 965941

November 18, 2002

CLA-2 RR: CR: GC 965941 DBS


TARIFF NO.: 9204.20.00

Mr. Herbert J. Lynch
Sullivan & Lynch, P.C.
156 State Street
Boston, MA 02109-2508

RE: Reconsideration of NY I80064; harmonica set

Dear Mr. Lynch:

This is in response to your letter dated September 26, 2002, on behalf of your client, First Act Inc., requesting reconsideration of NY I80064, issued to you on April 26, 2002. We have reviewed the ruling and found it to be correct.


The merchandise at issue, the “Learn & Play Harmonica,” consists of a 40-page illustrated instructional book, measuring approximately 51/2 inches by approximately 7 inches, and a 10-hole diatonic harmonica in the key of C, measuring approximately 4 inches. The harmonica comes enclosed in a plastic zip-lock bag attached to the book’s spiral binder. The bag is attached to the cover of the book by a nylon hook and loop fastener. The suggested retail price for the set is $9.99. The cost of the book is $1.97. The cost of the harmonica is $0.60.

In NY I80064, the “Learn & Play Harmonica” was classified as a set put up for retail sale, with both the book and harmonica being equally essential. Thus, it was classified according to the provision that occurs last, which is the provision for the harmonica, in subheading 9204.20.00, HTSUS.


Whether either the instruction book or the harmonica imparts the essential character of the “Learn & Play Harmonica” set.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

4901 Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets: Other:

4901.99.00 Other

9204 Accordions and similar instruments; mouth organs:

9204.20.00 Mouth organs

We agree with the determination in NY I80064 that the “Learn & Play Harmonica” is classifiable as a set put up for retail sale, as the components satisfy the criteria to be classifiable as a set put up for retail sale set forth in EN (X) to GRI 3(b), which provides that the goods are as follows:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The “Learn & Play Harmonica” consists of a book that is prima facie classifiable in heading 4901, HTSUS, and a harmonica that is prima facie classifiable in heading 9204, HTSUS. They are put up together to carry out the specific activity of learning to play a harmonica. And as the harmonica is put up in an enclosed bag that is bound to the book, and is sold directly to users in this form, the goods are put up in a manner suitable for sale directly to users without repacking. Therefore, the “Learn & Play Harmonica” is a set put up for retail sale according to GRI 3(b). As such, it is classifiable according to that component which imparts the essential character of the set.

EN VIII to GRI 3(b) explains 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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See, e.g., Better Home Plastics Corp. v. U.S., 916 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998).

As both the book and the harmonica are each necessary in carrying out the set’s specific activity of learning to play a harmonica, both components are "indispensable” to the set. Better Homes Plastics, 916 F. Supp. at 1267-8 (holding the utilitarian role of a shower liner is more important than decorative value of the curtain sold with it). Counsel’s arguments regarding the relative costs of the components and the marketing emphasis on the book are not determinative in this case because the function of the set must be carried out with both components.

Inasmuch as it is not possible to determine the essential character of this article, resort must be made to GRI 3(c), HTSUS. Therefore, the set is classifiable under the heading which occurs last in numerical order among those which equally merit consideration. Accordingly, the set is classifiable in subheading 9204.20.00, HTSUS.


Based on GRI 3(c), the “Learn & Play Harmonica” is classifiable in subheading 9204.20.00, HTSUS, which provides for, “Accordions and similar instruments; mouth organs: mouth organs.”


Myles B. Harmon, Acting Director
Commercial Rulings Division

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