HQ 951734

February 19, 1993

CLA-2 CO:R:C:M 951734 DWS

CATEGORY: Classification

TARIFF NO.: 8543.80.90

District Director

U.S. Customs Service

511 N.W. Broadway

Federal Building

Portland, OR 97209

RE: Protest No. 2904-92-100054; \"Santa\'s Marching Band\";

\"Bells of Christmas\"; Electric Musical Bell Garlands;

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 9208; Explanatory Note 92.08(I); Heading

8306; Heading 9405; 9505.10.25; 9505.10.50

Dear Sir:

This is our response on Application for Further Review of

Protest No. 2904-92-100054, dated March 9, 1992, concerning your

action in classifying and assessing duty on certain electric

musical bell garlands under the Harmonized Tariff Schedule of the

United States (HTSUS).

FACTS:

The merchandise is described as the \"Bells of Christmas\" and

the \"Santa\'s Marching Band\" electric musical bell garlands. The

\"Bells of Christmas\" is comprised of ten brass bells, each

containing an electronic module which, when activated, chimes

fifteen Christmas songs. When the device is on, a light bulb, at

the bottom of each bell, flashes regardless of whether the carols

are playing. The garland is powered by an A/C adaptor. It can be

strung on a Christmas tree or displayed, for example, along a

mantlepiece.

The \"Santa\'s Marching Band\" is comprised of a string of eight

rubber musicians standing on plastic drums which, through the

operation of an electronic device, turn and strike a total of

sixteen (two bells per musician) brass bells. By striking the

bells in various orders, the musicians can play a total of thirty-

five Christmas carols. Each musician possesses a small lamp which

flashes as the musician strikes a bell. The system is attached to

a plug-in lead power cord. The garland can be strung on a

Christmas tree or displayed, for example, along a mantlepiece.

ISSUE:

Whether the \"Bells of Christmas\" and the \"Santa\'s Marching

Band\" are classifiable under heading 9505, HTSUS, as articles for

Christmas festivities, under heading 9405, HTSUS, as lighting sets

for Christmas trees, under heading 8543, HTSUS, as electrical

machines and apparatus, or under heading 8306, HTSUS, as statuettes

and other ornamental articles of base metal?

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 garlands are electric garlands, under

chapter 95, note 1(t), HTSUS, they are precluded from

classification under heading 9505, HTSUS.

We find that the garlands are composite goods consisting of

different components and are both described under headings 9405,

8306 and 8543, HTSUS. The garlands are described under heading

8306, HTSUS, which, in part, provides for: \". . . statuettes and

other ornaments, of base metal . . .\", under heading 8543, HTSUS,

which provides for: \"\[e\]lectrical machines and apparatus, having

individual functions, not specified or included elsewhere in this

chapter\", and under heading 9405, HTSUS, which, in part, provides

for: \"\[l\]amps and lighting fittings including searchlights and

spotlights and parts thereof, not elsewhere specified or included

. . .\" 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 both garlands are composite goods 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

garlands are composite goods, under GRI 3(b), we must determine

their 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 \"Bells

of Christmas\" is imparted by the electronic 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. Although the garland flashes lights whether or not the

electronic module is activated, it is marketed as \"Bells of

Christmas\" and it is purchased in order to provide Christmas carols

during the holiday season. See HQ 950201, dated November 15, 1991.

The essential character of the \"Santa\'s Marching Band\" is

imparted by the electronic device which, depending on the selected

song, directs the musicians to strike the bells in order. We find

that the flashing lights have a secondary, ornamental purpose.

Concerning the classification of the both garlands, it has

been suggested that Explanatory Note 92.08 is dispositive. In

part, heading 9208, HTSUS, provides for musical boxes. Explanatory

Note 92.08(1) (p. 1562) states in part that:

\[a\]rticles which incorporate a musical mechanism but which are

essentially utilitarian or ornamental in function . . . are

not regarded as musical boxes within the meaning of this

heading. These articles are classified in the same headings

as the corresponding articles not incorporating a musical

mechanism.

It is our position that Explanatory Note 92.08(1) does not

apply to the classification of the merchandise. No claim has been

made that the garlands are musical boxes classifiable under heading

9208, HTSUS. Because there is no language present which applies

Explanatory Note 92.08(I) to other provisions in the HTSUS, it is

not relevant to the classification of the merchandise. As has been

stated, both garlands are composite goods consisting of a statuette

or other ornamental article of base metal, a lighting set, and an

electronic module or device. It is our position that the

electronic module or device imparts the essential character of both

garlands.

Consequently, we find that both the \"Bells of Christmas\" and

the \"Santa\'s Marching Band\" 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.\"

HOLDING:

The \"Bells of Christmas\" and the \"Santa\'s Marching Band\" are

classifiable under subheading 8543.80.90, HTSUS.

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