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HQ 966962




February 9, 2005

CLA-2 RR:CR:GC 966962 MG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.30.0040

Port Director
101 East Main Street
Norfolk, VA 23510

RE: Protest 1401-03-100288; Christmas light sets

Dear Port Director:

This is our decision on Protest 1401-03-100288, filed by New England Pottery Co., Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Christmas light sets. The entries under protest were liquidated on July 11, 2003, under subheading 9405.30.0040, HTSUS, and this protest was timely filed on October 10, 2003.

FACTS:

The merchandise at issue is, described on the invoice as “Christmas light sets,” consists of various UL-rated light sets, numbers NUFH146600B, NCFH148600B, NUFH166648B, and NUCD285049B. Protestant claims classification of these light sets under subheading 9505.10.2500, HTSUS, which provides for “Festive, carnival or other entertainment articlesparts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.”

ISSUE:

Whether the subject Christmas lights sets are classified as lighting sets of a kind used for Christmas trees under heading 9405, HTSUS, or as festive articles under heading 9505, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-90.

The HTSUS provisions under consideration are as follows:

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:

Lighting sets of a kind used for Christmas trees:

9405.30.0040 Other

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Articles for Christmas festivities and parts and accessories thereof:

Christmas ornaments:

Other:

9505.10.2500 Other.

In making our determination, we note initially that subheading 9405.30.00, HTSUS, is a principal use provision within the meaning ascribed in Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (CAFC 1999). In Primal Lite, the court concluded that subheading 9405.30.00, HTSUS, is a principal use provision and therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In determining the principal use of a product, CBP considers a variety of factors including general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979. In sum, principal use can be defined as an article’s use which exceeds any other single use.

Festive, carnival or other entertainment articles, are provided for under heading 9505, HTSUS. Protestant references HQ 962647, dated April 5, 2000, to support its contention that the Christmas light sets are classified under heading 9505, HTSUS. Protestant, however, has failed to explain how the merchandise in that ruling relates to the subject Christmas light sets. It should be noted that Chapter 95, Note 1(t), HTSUS, specifically excludes “electric garlands of all kinds” and directs that they be classified under heading 9405, HTSUS. Based on the description of the merchandise, it is undisputed that the light sets at issue are the kind intended for use during the Christmas holiday season. Such merchandise is classified under heading 9405, HTSUS, pursuant to the exclusion in Note 1(t) of chapter 95.

CBP has repeatedly classified electric string lights under subheading 9405.30.00, HTSUS, when it was determined that they were of the class or kind of merchandise that was principally used for decorating Christmas trees. See HQ 966882, dated March 10, 2004, NY I83154, dated July 17, 2002, NY I83156, dated July 17, 2002, NY J89048, dated November 7, 2003, NY I83157, dated July 10, 2002, NY I82127, dated July 1, 2002 and NY I82362, dated July 1, 2002. Because of the likelihood that they will be sold in the Christmas section of stores during the holiday season, CBP believes that the expectation of the ultimate purchaser is that these lights are intended for use on Christmas trees. See HQ 967008, dated June 29, 2004 and HQ 966882, dated March 10, 2004.

Although CBP concedes consumers may also purchase these lights with the intent to use them on objects other than Christmas trees, CBP believes that the principal use of light sets of this type is for Christmas trees and notes that substantially similar merchandise has repeatedly been classified under subheading 9405.30.00, HTSUS. See, NY J89048, dated November 7, 2003, NY J83867, dated May 7, 2003, NY I85459, dated September 12, 2002, NY I83664, dated July 17, 2002, NY I82126, dated July 1, 2002 and NY I83133, dated July 10, 2002.

Accordingly and consistent with previous rulings, we find that the Christmas light sets are classified under subheading 9405.30.00, HTSUS, as “Lighting sets of a kind used for Christmas trees.”

HOLDING:

The electric string light sets are classified under subheading 9405.30.0040, HTSUS, as “Lighting sets of a kind used for Christmas trees: Other.” The 2003 column one rate of duty is 8.0 percent ad valorem.

Duty rates are provided for The Protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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