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HQ 963311




October 19, 2000

CLA-2 RR:CR:GC 963311 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.80

Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202

RE: Protest 1303-99-100286; electric garlands; Headings 9405 and 9505; Primal Lite, Inc. v. United States; Midwest of Cannon Falls, Inc. v. United States

Dear Port Director:

The following is our decision regarding Protest 1303-99-100286 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain electric garlands. The entry under protest was liquidated on July 16, 1999, and this protest was filed on October 8, 1999.

FACTS:

The articles under protest consist of four styles of electric light garlands composed of a wire harness that incorporates ten sockets and ten miniature light bulbs (with the exception of the orange colored light bulbs which are composed of 50 sockets and 50 miniature light bulbs). Three styles of the electric light garlands are composed of removable plastic light covers which are created in jack-o’lantern pumpkins, human skulls and human skeletons. Photos of the pumpkins, skull and skeleton and orange lights were submitted. The samples for consideration are as follows:

Jack o’lantern pumpkins, # 45-135-N
Human skulls, # 45-136-N
Orange colored light bulbs, # 45-207-ORG-N Human skeletons, # 45-519-N

Protestant entered the merchandise on September 9, 1998, under subheading 9505.90.60, HTSUS, which provides for other festive articles, other. The entry was liquidated on July 16, 1999, under subheading 9405.40.80, HTSUS, which provides for other electric lamps and lighting fittings, other than of base metal. This protest was filed on November 30, 1999.

Protestant claims that the articles are classifiable under subheading 9505.90.60, as they serve as decorations in celebration of particular holidays. Protestant asserts that the liquidated classification is inconsistent with the decision of Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) (hereinafter Midwest) and the decision of Primal Lite, Inc. v. United States, 15 F.Supp. 2d 915 (Ct. Int’l Trade 1998), aff’d 182 F.3d 1362 (CAFC 1999).

ISSUE:

Whether the electric light garlands are classifiable as other festive articles in heading 9505, HTSUS, or as other electric lamps and lighting fittings in heading 9405, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings and legal notes under consideration are as follows:

Chapter 94, This chapter does not cover:
Note 1(l) (l)Toy furniture or toy lamps or lighting fittings (heading 9503), billiard tables or other furniture specially constructed for games (heading 9504), furniture for magic tricks or decorations (other than electric garlands) such as Chinese lanterns (heading 9505).

9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included:

9405.40 Other electric lamps and lighting fittings:

9405.40.80 Other

Chapter 95,
Note 1(t) This chapter does not cover electric garlands of all kinds (heading 9405).

Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.

9505.90 Other

9505.90.60 Other:

The ENs to heading 9505 state, in pertinent part, 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 fiber, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, colored balls, bells, lanterns, etc.

Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

Webster’s 3rd New International Dictionary of the English Language (unabridged) (1993) defines a garland as “a wreath or festoon of leaves or flowers to be worn on the head or used to decorate an object”. Id. at 936. An article is an electric garland if it able to be hung or displayed and is composed of a string of light bulbs which are powered by an electrical source either attached by a power cord, battery or plug. See also HQ 952832, dated February 19, 1993, (describing a “Holiday Carousel” electric music garland).

As these articles qualify as electric garlands as defined above, the legal notes set forth direct classification in heading 9405 at GRI 1. We note that EN 94.05(I)(3) states that heading 9405 provides, in pertinent part, for “electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees)”.

The protestant contends that the instant articles’ classification within heading 9405 is inconsistent with Primal Lite. The issue in Primal Lite was whether importations consisting of 14-foot long lengths of wire set with ten light bulbs and with two extra plastic shapes in the form of objects such as fruits, vegetables, hearts, rearing horses, guitars and American flags were classifiable in subheading 9405.30.00, HTSUS, which provides for “lighting sets of a kind used for Christmas trees”.

Both the Court of International Trade and the Court of Appeals for the Federal Circuit in Primal Lite agreed that the importations were inappropriately classified in subheading 9405.30.00 on the premise that the articles were not used on Christmas trees nor during the Christmas holiday. In the instant case, the Primal Lite decision does not support the protestant’s claim for heading 9505. Rather, the instant garlands and the goods in Primal Lite are similar in nature as neither articles are used during the Christmas holiday nor as decorations on a Christmas tree, and the courts in Primal Lite classified the goods in subheading 9405.40.80, HTSUS.

In addition, we disagree with the protestant’s contention that the instant articles’ classification within heading 9405 is inconsistent with the Midwest decision and the Customs’ Informed Compliance Publication (hereinafter ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998. In fact, neither Midwest nor the ICP support the protestant’s claim that the instant articles are festive in nature. The ICP notes: “the Midwest decision does not overrule section and Chapter Notes exclusions.” Id. It further adds, “the [Midwest] court did not validate or void any Explanatory Note of Heading 9505 or find them to be at cross-purposes with the statutory language of the headings or subheadings.” Id.

As Chapter 95, Note 1(t) provides that “[t]his chapter does not cover electric garlands of all kinds (heading 9405)”, we are compelled to the same conclusion here, by virtue of the legal notes and the decision in Primal Lite. Thus, the subject garlands are non-Christmas motif electric garland articles whose intended design and purpose is to decorate the home throughout the year which do not qualify as festive goods within heading 9505.

HOLDING:

At GRI 1, the enumerated garlands are classifiable in subheading 9405.40.80, HTSUS, which provides for other electric lamps and lighting fittings, other than of base metal.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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