HQ 952188: 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

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 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