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HQ 967408




February 9, 2005

CLA-2 RR:CR:GC 967408 MG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.30.0040

Acting Assistant Port Director
Trade Operations
Chicago, Illinois 60607

RE: Protest 3901-04-100967; Christmas light sets

Dear Port Director:

This is our decision on Protest 3901-04-100967, filed on behalf of 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 April 2, 2004, under subheading 9405.30.0040, HTSUS, and this protest was timely filed on July 1, 2004.

FACTS:

The merchandise at issue consists of two varieties of Christmas stringer electric light sets (“Christmas light sets”). They are 25 feet and 100 feet in length and carry C7 lamps, which are principally used to decorate Christmas trees. Protestant claims classification of these light sets under subheading 9405.40.8000, HTSUS, which provides for “Other electric lamps and lighting fittings: Other.”

ISSUE:

Whether the subject electric string lights are classified as lighting sets of a kind used for Christmas trees under subheading 9405.30.0040, HTSUS, or as other electric lamps and lighting fittings under heading 9405.40.8000, 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.

Other electric lamps and lighting fittings:

9405.40.8000 Other.

We note initially that festive, carnival or other entertainment articles, are provided for under heading 9505, HTSUS. However, chapter 95, Note 1(t), HTSUS, specifically excludes “electric garlands of all kinds” and directs that they be classified under heading 9405, HTSUS.

In examining the competing subheadings within heading 9405, HTSUS, we note 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 because subheading 9405.30.00, HTSUS, is a principal use provision, it is therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS, which states as follows:
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;

Additionally, the Primal Lite court, in discussing principal use, held that “it is the use of the class or kind of goods being imported that is controlling, rather than the specific use to which the importation itself is put,” i.e. goods need not be actually used in the same manner as the entire class or kind in order to be recognized as part of that class or kind. CBP has repeatedly upheld this analysis by defining principal use as the use of the class or kind of the merchandise at issue that exceeds any other use. See HQ 964954, dated, April 18, 2002, HQ 963264, dated May 4, 2001, HQ 963032, dated July 24, 2000 and HQ 083885, dated July 18, 1989. Therefore, to classify the subject merchandise, it is necessary to determine whether it belongs to the class or kind of goods that are recognized as being principally used for the decoration of Christmas trees or for other purposes not necessarily relating to Christmas trees.

The issue of class or kind was discussed in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). In Carborundum, the court, in determining whether an iron-silicon alloy was in fact used for the manufacture of ferrous metals, noted that “[t]he importer must establish that the imported merchandise belongs to a class or kind of merchandise which is commonly used as raw materials in the manufacture of ferrous metals.” [Emphasis added]. Consequently, even if the merchandise was not found to be used specifically for the manufacture of ferrous metals, it could still be considered a part of that class or kind of merchandise if it satisfied certain criteria.

To establish class or kind, the Carborundum court articulated, and CBP has repeatedly applied, a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchaser; (3) the channels of trade in which the merchandise moves; (4) the environment of sale (accompanying accessories, manner of advertisement and display); and (5) the usage of the merchandise. Although application of these factors is often essential to determine class or kind, it is additionally significant to note that not every factor can or should be applied in each instance and that applicability is dependent upon the particular merchandise at issue, as well as the available information.

There is no argument that the lights at issue are intended for use during the Christmas holiday season. Protestant cites to HQ 963264, dated May 4, 2001, in support of its purported classification. However, protestant has failed to adequately prove that the subject Christmas light sets do not belong to the class or kind of goods generally recognized as being principally used for the decoration of Christmas trees. In fact, some of the product’s literature states that the lights “can decorate trees or be hung around your house using mounting accessories” and that they are “safe for both indoor and outdoor use so you can decorate both the tree and the house for the holidays!” Furthermore, the literature submitted with the protest shows the lights being used to decorate a Christmas tree.

Although the subject Christmas light sets have a dual indoor and outdoor use, CBP does not believe that this factor by itself is determinative for finding the lights at issue are part of a class or kind of light that is principally used for decorative purposes other than Christmas trees. CBP has repeatedly classified electric string lights capable of both indoor and outdoor use 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, HQ 967008, dated June 29, 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.

Given the aforementioned, CBP believes that the expectation of the ultimate purchaser is that these lights are intended for use on Christmas trees. 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.

In considering the foregoing, CBP believes that, despite the fact these lights may be designed in part for use both inside and outside a house, and for decorating objects other than Christmas trees, they represent the class or kind of light that is recognized as being principally used for Christmas trees. As such, they are classified under subheading 9405.30.00, HTSUS, as “Lighting sets of a kind used for Christmas trees.”

CBP recognizes the extensive and broadening use of these types of electric lights during the Christmas holiday season for purposes other than decorating a Christmas tree. However, because the decoration of Christmas trees still constitutes the principal use for this type merchandise, and the HTSUS does not detail varying provisions to account for this expanded use, lighting sets not designed or used specifically for Christmas trees, if determined to be part of the class or kind of lighting set principally used for decoration of a Christmas tree, are still classified under subheading 9405.30.0040, HTSUS, as “Lighting sets of a kind used for Christmas trees: Other.” See HQ 967008.

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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