CLA-2 CO:R:C:M 952832 DWS
Mr. Peter A. Pennesi
Import Supervisor
V. Alexander & Co., Inc.
P.O. Box 30250
Memphis, TN 38130-0250
RE: "Holiday Carousel"; Electric Musical Garlands; Heading 9505;
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 3926; Heading 9405
Dear Mr. Pennesi:
This is in response to your letter of August 10, 1992, on
behalf of Mr. Christmas, Inc., concerning the classification of
certain musical garlands under the Harmonized Tariff Schedule of
the United States (HTSUS).
FACTS:
The merchandise is described as the "Holiday Carousel"
electric musical garland (style no. 400). It is comprised of a
string of six individual plastic carousel horses which ride up and
down continuously. Also included in the string is a circus calliope
wagon which plays Christmas carols. The article can be strung for
display on a Christmas tree or displayed, for example, on a
mantlepiece. The horses and wagon are framed with LED lights, and
the former are also illuminated by light bulbs. These lights may
only be displayed while the carols are played. The garland is
powered by an electric motor pack which is attached to a power cord
and plug.
ISSUE:
Whether the "Holiday Carousel" is classifiable under heading
9505, HTSUS, as an article for Christmas festivities, under heading
9405, HTSUS, as a lighting set for Christmas trees, under 8543,
HTSUS, as an electric machine or apparatus, or under heading 3926,
HTSUS, as an other article of plastic?
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.
Heading 9505, HTSUS, provides for: "[f]estive, carnival or
other entertainment articles, including magic tricks and practical
joke articles."
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 9405, 8306 and
8543, HTSUS. The garland is described under heading 3926, HTSUS,
which, in part, provides for: "[o]ther articles of plastic . . .",
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 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
"Holiday Carousel" is imparted by the electronic device which, when
turned on, causes the horses to ride up and down continuously and
the calliope wagon to play Christmas carols. We find that the
flashing lights have a secondary, ornamental purpose.
Concerning the classification of the garland, 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 garland is a musical box 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, the garland is a composite good consisting of an other
article of plastic, a lighting set, and an electronic device. It
is our position that the electronic device imparts the essential
character of the garland.
Consequently, the "Holiday Carousel" 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 Carousel" is classifiable under subheading
8543.80.90, HTSUS. The general, column one rate of duty is 3.9
percent ad valorem.
Sincerely,
John Durant, Director