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HQ 954252


November 15, 1993

CLA-2 CO:R:C:F 954252 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000

Mr. Nic Adams
Fingerhut Corporation
4400 Baker Road
Minnetonka, MN 55343

RE: Lighted Plastic Lawn Ornaments

Dear Mr. Adams:

This is in response to your company's request of April 29, 1993, addressed to our New York Seaport Area Office, requesting a binding ruling as to certain lighted lawn ornaments, your code q4883. A sample of the article was included with the request.

FACTS:

The article consists of five snowmen, four sets of reindeer and a Santa on a sleigh. It is two dimensional. It is made of high-impact weather resistant styrene. Light bulbs and electric supply cords are supplied. Each ornament is designed with a triangular stake, which is pushed into the snow or ground. Light bulbs in sockets fit into an opening in the base of each ornament at the top of the stake and just below the pictorial representation. Once in place the light bulb are shielded by reflectors which snap into the stake over the bulb opening.

ISSUE:

What is the classification of the subject article?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

Heading 9505 provides for festive, carnival, and other entertainment articles. The Explanatory Notes (EN) to the Harmonized System which express the views of the international classification experts indicates that the heading covers:

(A) Festive, carnival and 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.

(2) Articles traditionally used at christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

Articles classifiable in heading 9505, HTSUSA, tend to have no other function than decoration. Such articles are, in accordance to Additional U.S. Rule of Interpretation 1(a), classified based on their use in the United States in the absence of special language or context which otherwise requires.

While the subject article is decorative and its pictorial representations may be generally associated with the winter season of the year, we note that they are not specifically - 3 -
festival related. In addition, we note that Note 1(t) to Chapter 95, HTSUSA, as well as the EN's to heading 9505, state that the chapter (or heading) excludes electric garlands of all kinds (heading 9405). As the electric portion of the subject article qualifies as an electric garland, it is not classifiable in heading 9505 and must be elsewhere classified.

Heading 9405, HTSUSA, provides for lamps and lighting fittings, The EN's to heading 9405 indicate that the heading includes specialized lamps, such as electric garlands, including those fitted with fancy lamps for carnival or entertainment purposes or for decorating trees. Because the article fits this description, it is classifiable in heading 9405.

The remaining portion of the article, composed of plastic would be classifiable in heading 3926, the provision for other articles of plastic.

Since the article is composed of two items and no heading provides for the article as a whole, it is not classifiable at the GRI 1 level. Thus, we must refer to GRI 3. GRI 3(a) provides that goods which are classifiable under two or more headings are classified under the heading which provides the most specific description of the goods. However, all such headings are regarded as equally specific when each refers to only part of the goods. Since that is the case with the instant article we cannot classify the articles by reference to GRI 3(a) but must refer to GRI 3(b).

GRI 3(b) provides that articles made up of two different components and goods put in sets for retail sale, which cannot be classified by reference to GRI 3(a), shall be classified as if they consisted of the component which gives them their essential character. The EN covering GRI 3(b) indicates 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 value, or by the role of a constituent material in relation to the use of the goods."

In the instant case, we have concluded that the article meets the definition of a set and that the plastic components thereof give the article its essential character. Each set, which forms a christmas display is imported in a retail package, and is shipped to the retail purchasers without repackaging. The decorative or ornamental function they perform, the primary - 4 -
purpose of the article, can clearly be performed, at least during daylight hours, without the lights. The addition of lights merely permit the plastic components to perform that function during non-daylight hours. Accordingly, the article is classifiable according to the heading which covers the plastic component thereof.

HOLDING:

Plastic lighted lawn ornament sets composed of plastic components as described above and electric garlands are classifiable in subheading 3926.40.0000, HTSUSA, which provides for statuettes and other ornamental articles of plastic. Such articles are subject to a general rate of duty of 5.3 percent ad valorem.

Your sample is returned.

Sincerely,

John Durant, Director
Commercial Rulings Division

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