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HQ 960790




November 4, 1997

CLA-2 RR:CR:GC 960790 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.30.00

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-96-103830; artificial Canadian pine garland; article with artificial pine foliage and lights with connector cord; lighting fittings, lighting sets of a kind used for Christmas trees; articles for Christmas festivities; principal use; U.S. Additional Note 1(a); GRI 1; GRI 6; subheading 9505.10.40; Chapter 95, Note 1(t); EN 94.05; HQ's 960590; 958221; NY 814073

Dear Port Director:

This is in response to Protest 2704-96-103830, which pertains to the tariff classification of certain artificial pine garlands with lights under the Harmonized Tariff Schedule of the United States (HTSUS). A photograph was submitted for our review.

FACTS:

The merchandise under protest consists of Canadian pine garlands with 35 lights (item T25290 has multi-colored lights; item T20286 has clear lights) on a connector cord. The garlands are stated to have artificial or "plastic" pine needles, are 9 feet long, and have 240 tips. The photograph shows the sockets and lights on the connector cord entwined in the branches of the garland.

An entry of May 31, 1996, is included in the protest. The entry was liquidated on September 27, 1996, with classification of the protested items under subheading 9405.30.00, HTSUS.

On December 20, 1996, the importer protested, contending that the described garlands should be classified under subheading 9505.10.40, HTSUS, and citing NY 814073, dated September 20, 1995. Further review was requested and granted.

The competing subheadings, as of the time under consideration, are as follows:

9405.30.00: [l]amps and lighting fittings ... not elsewhere specified or included ...: ...
[l]ighting sets of a kind used for Christmas trees.

The 1996 general column one rate of duty for goods classifiable under subheading 9405.30.00 is 8% ad valorem.

9505.10.40 [f]estive ... articles ...: [a]rticles for Christmas festivities and parts and accessories thereof: ... [other]: [o]f plastics.

Goods subject to the column one rate of duty and classifiable under subheading 9505.10.40 receive duty-free treatment.

ISSUE:

Are the artificial pine garlands with lights on a connector cord classifiable as lighting sets of a kind used for Christmas trees or as festive articles; articles for Christmas festivities?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and that the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 6 states that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. For the purposes of GRI 6, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Festive, carnival or other entertainment articles, to include garlands, are provided for in heading 9505. However, Chapter 95, Note 1(t), HTSUS, specifically excludes garlands of all kinds, and refers them to heading 9405. In addition, the EN for heading 9405, EN 94.05, provides that the heading covers "in particular: ... [s]pecialised lamps, e.g.: ... electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees)."

The protestant cites NY 814073, dated September 20, 1995. On the basis of Chapter 95, Note 1(t), HTSUS, NY 814073 was specifically revoked by HQ 960590, dated August 6, 1997 (August 27, 1997, Customs Bulletin and Decisions, vol. 31, no. 35, p.10). Furthermore, HQ 958221, dated August 7, 1995, classified a lighted Canadian pine garland identical in all material respects to the merchandise in this case (consisting of a "Christmas-like PVC garland measur[ing]] approximately 9 feet in length and possess[ing] an electrical wire harness with 50 sockets securing 50 lights entwined in its branches] in subheading 9405.30.00, HTSUS, because of evidence that, in the trade, wire harnesses with light sockets and bulbs belong to a class or kind of goods the principal use of which is as Christmas tree lighting sets.

Because of the exclusion in Chapter 95, Note 1(t), HTSUS, the merchandise is classifiable in heading 9405, rather than heading 9505 (GRI 1). Pursuant to GRI 6, subheadings at the same level of heading 9505 are comparable. Subheading 9405.30.00, HTSUS, is a "use" provision. If an article is classifiable according to the use of the class or kind of goods to which it belongs, as is true of this provision, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:

In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

In other words, the article's principal use in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139).

Christmas tree lighting sets include, but are not limited to, traditional seasonal colors. They are not limited by length, but rather by the number of bulbs, typically 25, 50, or 100 per strand, but such sets may include as few as 10 bulbs. The merchandise under consideration, artificial Canadian pine garlands with 35 lights (either multi-colored or clear) on a connector cord entwined in the branches of the garland, belong to a class or kind of goods the principal use of which is as Christmas tree lighting sets (HRLs 958221, dated August 7, 1995, and 950590, dated August 6, 1997).

HOLDING:

The artificial pine garlands with lights on a connector cord are classifiable as lighting sets of a kind used for Christmas trees, in subheading 9405.30.00, HTSUS.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director,

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