HQ 0953189 - Decision on application for further review of Protest No. 2704-92-101481, filed April 6, 1992, concerning classification of outdoor electric light sculptures; Heading 9405, HTSUSA, lamps and lighting fittings; Not 3926, articles of plastics; Not 9505, festive article; HRL's 952890, 952520, 951422, 950041, 088233 - United States International Trade Commision Rulings

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HQ 953189

April 15, 1993

CLA-2 CO:R:C:F 953189 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.60

District Director
U.S. Customs Service
300 South Ferry Street - Terminal Island
Room 2017
San Pedro, CA 90731

RE: Decision on application for further review of Protest No. 2704-92-101481, filed April 6, 1992, concerning classification of outdoor electric light sculptures; Heading 9405, HTSUSA, lamps and lighting fittings; Not 3926, articles of plastics; Not 9505, festive article; HRL's 952890, 952520, 951422, 950041, 088233

Dear Sir:

This is a decision on a protest filed April 6, 1992, against your decision in the classification of certain merchandise liquidated on February 21, 1992 and February 28, 1992.

FACTS:

The articles at issue, imported from Hong Kong, by Costco Wholesale Corporation, are outdoor electric light sculptures from Mr. Christmas, item 10708. The sculptures, composed of pre- assembled wire frames, covered by colored, plastic tubes of chasing lights, depict the outlines of various figures, including reindeer, Santa Claus, a Christmas tree, and an angel. Each figure is supported by an attached metal stand to anchor the lights on a lawn or to hang them on a wall and is equipped with a power supply cord and a variable speed control. An electrical wire harness incorporates light sockets and bulbs, which are replaceable.

The protestant entered the articles under subheading 3926.40.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles," at a duty rate of 5.3 percent ad valorem.

You classified the articles under subheading 9505.10.50, HTSUSA, as "Festive, carnival or other entertainment articles...: Articles for Christmas festivities...: Other: Other," at a duty rate of 5.8 percent ad valorem.

We understand, however, you now maintain that neither the liquidated nor the claimed classification is correct. In your opinion, the articles are classifiable under subheading 9405.40.60, HTSUSA, as "Lamps and lighting fittings...not elsewhere specified or included...: Other electric lamps and lighting fittings: Of base metal: Other," at a duty rate of 7.6 ad valorem.

ISSUE:

Whether the electric light sculptures are classifiable in heading 3926 as other articles of plastics, in heading 9405 as lamps and lighting fittings, or in heading 9505 as festive articles.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 9505 provides for, inter alia, festive, carnival and other entertainment articles. The EN's to 9505 indicate that the 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.

(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....

In general, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or, generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, plastic, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g., stockings and tree ornaments for Christmas, decorative eggs for Easter).

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article.

Although the articles' primary function is decorative, as opposed to, utilitarian, when examining each light sculpture, as a whole, it is evident that the articles are not traditionally associated or used with the particular festival of Christmas. The light sculptures are not ejusdem generis with those articles cited in the EN's to 9505, as exemplars of traditional, festive articles. We note, in particular, 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). Because the articles are similar to electric garlands, this further indicates that they are not classifiable in 9505 and must be classified elsewhere. We also note that the light sculpture depicting an outline of Santa does not meet the criteria for classification in 9505 as a Santa figure. See HRL's 952520, issued October 22, 1992 and 951422, issued November 25, 1992.

Since no HTSUSA provision provides for the articles, as a whole, they are not classifiable at the GRI 1 level. Thus, we turn to GRI 3(a) to classify the articles in the HTSUSA heading providing for one of its components: either the wire harness with the light sockets and bulbs, in 9405; the plastic tubing, in

3926; or the metal frame. We note that the EN's to 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 Christmas trees. The articles are potentially classified within 9405 because, similar to the electric garlands referred to in the EN's, they are composed of light sockets and light bulbs connected by a wire harness and are for entertainment purposes.

GRI 3(a) explains, in pertinent part, 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. Each of the possible headings, in this case, refers to only part of the goods. Since the headings are, thus, regarded as equally specific, we do not classify the articles by GRI 3(a) but rather by GRI 3(b).

GRI 3(b) provides that articles made up of different components, that is, composite goods, shall be classified as if they consisted of the component which gives them their essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article is. EN VIII to GRI 3(b) explains that bulk, quantity, weight, value or the role of a constituent material in relation to the use of the article are indicia of essential character.

The wire harness with the light sockets and bulbs imparts the essential character of the articles. It distinguishes the articles as electric light sculptures and allows the articles to function as such. The plastic tubing, on the other hand, merely covers the lighting component. As the articles are principally designed to be used outdoors, we emphasize that without the lighting, the articles cannot be seen in the dark and are merely plastic tubing outlines of figures in the daylight. It is apparent these articles are not purchased because of their colored, plastic tubing, but rather are purchased because of the ornamental illumination which the lighting creates, functioning similarly to Christmas tree lighting sets and other types of lighting.

The light sculptures are distinguishable from the Little Village collection of HRL 950041, issued October 31, 1991 and the framed mirrors of HRL 088233, issued May 1, 1991. In those cases the articles or figures provided the essential character because the lighting functions therein simply enhanced the articles, which apparently were not purchased, primarily, for their electrical characteristics.

We reiterate that the EN's to 9405 indicate that the heading includes "electric garlands" for carnival or entertainment purposes or for decorating Christmas trees. It is our position that this language does not limit classification within 9405 only to "electric garlands" used for such purposes. We also maintain that although the subject articles function similarly to "electric garlands," they do not qualify as lighting sets of the kind used for Christmas trees. Because the harness and light component, which imparts the articles' essential character, is of base metal, the appropriate eight digit subheading is 9405.40.60. This decision is in accord with HRL 952890, issued March 16, 1993, where identical articles were classified in 9405.40.60.

HOLDING:

The outdoor electric light sculptures are classifiable in subheading 9405.40.60 as "Lamps and lighting fittings...not elsewhere specified or included;...: Other electric lamps and lighting fittings: Of base metal: Other." The general column one rate of duty is 7.6 percent ad valorem.

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest in full. A copy of this decision with the Form 19 should be sent to the protestant.

Sincerely,

John Durant, Director

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