HQ 956776: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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, . . . 

     (2) - (3) xxx

     (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:

     (1) - (12) xxx

     (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