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HQ 952188

January 15, 1993

CLA-2 CO:R:C:M 952188 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

District Director
U.S. Customs Service
555 Battery Street
P.O. Box 2450
San Francisco, CA 94126

RE: Protest No. 2809-92-100223; Holiday 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 3926; 9505.10.25; 9505.10.50

Dear Sir:

This is our response on Application for Further Review of Protest No. 2809-92-100223, dated February 6, 1992, concerning your action in classifying and assessing duty on electric Christmas bell garlands under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of "Holiday Bells" (item no. D64/10296). The electric Christmas bell garland is comprised of a string of ten plastic bells, each containing an electronic module which, when activated, chimes twelve Christmas carols. The garland can be powered by three AA batteries or a plug-in adaptor. It can be strung on a Christmas tree, across a mantelpiece, or on a stairway bannister.

ISSUE:

Whether the "Holiday Bells" are classifiable under heading 9505, HTSUS, as articles for Christmas festivities, under heading 3926, HTSUS, as statuettes and other plastic ornamental articles, or under heading 8543, HTSUS, as electrical machines and apparatus?

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.

The merchandise was entered 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: [o]ther." However, the entry was liquidated under subheading 9505.10.50, HTSUS, which provides for: "[a]rticles for Christmas festivities and parts and accessories thereof: [o]ther: [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 3926 and 8543, HTSUS. The garland is described under heading 3926, HTSUS, which provides for: "[o]ther articles of plastics and articles of other materials of headings 3901 to 3914." 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; parts thereof." 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 electronic module which, when activated, chimes twelve 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 "Holiday Bells" and it is purchased in order to provide Christmas songs 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 "Holiday Bells" are 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."

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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