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HQ 951386

January 15, 1993

CLA-2 CO:R:C:M 951386 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

Mr. William Daly
R.H. Macy Corporate Buying
Eleven Penn Plaza
New York, NY 10001-2006

RE: Reconsideration and Revocation of NY 838787; "Caroling Christmas Bells"; Electric Christmas Bell Garland; Explanatory Note 95.05(A)(1) and (2); Chapter 95, note 1(t); Explanatory Note 85.43(13); GRI 3; Explanatory Note 3(b)(VIII); HQ 950201; Heading 8306; 9505.10.25

Dear Mr. Daly:

This is in reference to NY 838787, dated April 11, 1989, concerning the classification of electric Christmas bell garlands under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of "Caroling Christmas Bells" (Style No. AUS 100). The electric Christmas bell garland is comprised of twelve electrically wired bell shapes with metal bases plated with brass. An electronic module within the bells chimes 25 Christmas carols. The garland is powered by an oblong shaped electronic activating device possessing an outlet for a plug-in adaptor. It can be hung on a Christmas tree, across a mantelpiece, or on a wreath.

ISSUE:

Whether the "Caroling Christmas Bells" are classifiable under heading 9505, HTSUS, as articles for Christmas festivities, under heading 8543, HTSUS, as electrical machines and apparatus, or under heading 8306, HTSUS, as statuettes and other ornaments of base metal?

2

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 NY 838787, the subject garland was held to be classifiable under subheading 9505.10.25, HTSUS, which provides for: "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof: [c]hristmas ornaments: [o]ther."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Notes 95.05(A)(1) and (2) (p. 1590) state that:

[t]his heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-
durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

However, chapter 95, note 1(t), HTSUS, states that:

1. This chapter does not cover:

(t) Electric garlands of all kinds (heading No. 94.05).

Because the subject garland is an electric garland, under chapter 95, note 1(t), HTSUS, it is precluded from classification under heading 9505, HTSUS.

We find that the garland is a composite good consisting of different components and is described under headings 8306 and 8543, HTSUS. The garland is described under heading 8306, HTSUS, which, in part, provides for: ". . . statuettes and other ornaments, of base metal . . ." It is also described under heading 8543, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter." We note that Explanatory Note 8543(13) (p. 1402) states that:

[t]he heading includes, inter alia:

(13) Electric 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 loud speaker and a mercury cell. They contain fixed musical programmes.

GRI 3 states that:

[w]hen, by application of 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to a part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, 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.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Because the garland is a composite good made up of different components which are described under different provisions of the HTSUS, those headings are to be regarded as equally specific under GRI 3(a). Therefore, GRI 3(a) fails in establishing classification, and GRI 3(b) becomes applicable. Because the garland is a composite good, under GRI 3(b), we must determine its essential character.

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.
It is our position that the essential character of the garland is imparted by the electric module which, when activated, chimes 25 Christmas carols. We find that the electronic module possesses the primary function in relation to the use of the garland. The garland is marketed as "Caroling Christmas Bells" and it is purchased in order to provide Christmas carols during the holiday season. See HQ 950201, dated November 15, 1991.

Consequently, it is our position that the subject garland is classifiable under subheading 8543.80.90, HTSUS, which provides for: "[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."

HOLDING:

The "Caroling Christmas Bells" are classifiable under subheading 8543.80.90, HTSUS. The general, column one rate of duty is 3.9 percent ad valorem.

EFFECT ON OTHER RULINGS

NY 838787 is revoked in full.

Sincerely,

John Durant, Director

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