HQ 951734: 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

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 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