CLA-2 RR:CR:GC 962309 JRS
John M. Peterson, Esq.
Neville, Peterson & Williams
80 Broad Street, 34th Floor
New York, NY 10004-2209
RE: Reconsideration of NY B86191; Electric garland with artificial pine foliage; Chapter 95, Note 1(t); EN 94.05; Primal Lite, Inc. v. United States
Dear Mr. Peterson:
This is in response to your letter of October 20, 1998, requesting reconsideration of NY B86191, dated July 1, 1997, on behalf of Target Stores, on the classification of four lighted pine garland sets under subheading 9405.30.00, Harmonized Tariff Schedule of the United States (HTSUS). Three samples (#T20286, #T10331, #T10368) were submitted for our review.
FACTS:
The four lighted pine garland sets, made in China, are described as follows:
(1) #T20286 is an electrical wire harness approximately 9 feet long, with a combination connector (consisting of plug blades and socket) on one end and a socket connector on the other--permitting the connection of several such sets to form a longer garland--, and containing 35 miniature lights of various colors, which are spaced approximately 3 inches apart; this light string is interwoven along the 9-foot length of plastic garland, consisting of artificial sprigs of balsam-like pine branches with short needles and has two spare light bulbs;
(2) #T25290 is identical to #T20286, except that the mini lights contain only clear, uncolored bulbs;
(3) #T10368 is an electrical wire harness approximately 25 feet long, with a combination connector (consisting of plug blades and socket) on one end and a socket connector on the other, and containing 50 miniature lights of various colors, spaced approximately 6 inches apart; this light string is interwoven along the 25-foot length of plastic garland, consisting of a continuous double-strand of artificial flat fir-like pine needles approximately 2 inches in length and has two spare light bulbs; and
(4) #T10331 is identical to #T10368, except that the mini lights contain only clear, uncolored bulbs.
You state that all articles at issue are festive indoor or outdoor Christmas holiday decorations, used to trim doors, windows, lintels, mantel pieces, walls, hallways, chandeliers, bannisters, rooflines, friezes, and entryways. You further state that they are not designed for use, nor are they used, on either real or artificial Christmas trees, noting the fact that the plastic garland’s artificial foliage itself simulates sprigs, boughs, or needles of fir trees of a specific kind which would argue against its use on a Christmas tree.
In NY B86191, Customs classified the four electric pine garland sets under subheading 9405.30.00, HTSUS, which provides for "lighting sets of a kind used for Christmas trees." Your assertion is that the appropriate classification is under subheading 9405.40.80, HTSUS, which provides for "[l]amps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included ... [o]ther electric lamps and lighting fittings ... [o]ther [than of base metal]."
ISSUE:
Are electric garlands with artificial pine foliage classifiable as festive articles under heading 9505 or as other electric lamps and lighting fittings under heading 9405.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
Festive, carnival or other entertainment articles, to include garlands, are provided for in heading 9505. However, Chapter 95, Note 1(t), HTSUS, specifically excludes "electric garlands of all kinds" and refers them to classification under heading 9405. In addition, the EN for heading 9405, EN 94.05 provides that the heading covers "in particular: ...(3) [s]pecialised lamps, e.g.: ...; electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees)." Since light sets with artificial pine foliage are electric garlands, they are classifiable in heading 9405, rather than heading 9505. See Chapter 95, Note 1(t).
The issue is under what subheading of heading 9405 is an electric garland with artificial pine foliage classifiable. The relevant subheadings under consideration are as follows:
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 source, and parts thereof not elsewhere specified or included:
* * *
9405.30.00 Lighting sets of a kind used for Christmas trees
9405.40 Other electric lamps and lighting fittings:
* * *
9405.40.80 Other
We note that New York Ruling Letter, NY B86191 dated July 1, 1997, predated the recent court cases which directly address the classification of electric light sets. In Primal Lite, Inc. v. United States, Slip Op. 98-1562, 1999 U.S. App. LEXIS 16014 (July 16, 1999) aff’g, 15 F. Supp. 2d 915, 22 CIT ___ (1998), the Court of Appeals for the Federal Circuit upheld a Court of International Trade decision (Slip Op. 98-98, July 7, 1998) that strands of electric lights that are packaged with decorative plastic covers depicting various objects including fruit, vegetables, hearts, American flags, rearing horses, and guitars, are classified under subheading 9405.40.80, HTSUS, under the residual subheading for "other electric lamps and lighting fittings."
The courts rejected Customs’ classification under subheading 9405.30.00, HTSUS, the provision for "lighting sets of a kind used for Christmas trees," finding that subheading 9405.30.00 was limited to lighting sets designed and used on Christmas trees. The court also rejected Customs’ position that subheading 9405.30.00 was sufficiently broad to cover other types of light strings and lighting sets not intended for use with Christmas trees. The CIT stated that "[i]nasmuch as the importations are not used for Christmas trees they do not fall within the plain original meaning of the statutory language." 15 F. Supp. 2d at 917. The Customs rulings issued to Primal Lite, namely, HQ 957553, dated March 20, 1995, and HQ 957835, dated June 5, 1995, were revoked by operation of law as a result of the court decisions.
Primal Lite, likewise, controls the classification of these lighted pine garlands sets. As you indicate in your request, the merchandise is designed as decorative garland for use indoors and outdoors to trim a house for the Christmas holidays. Placing such garland on a Christmas tree would be unacceptable because it would distort the natural shape of a tree and create unnatural "bunching."
Since Primal Lite limits the provision of subheading 9504.30.00, HTSUS, to lighting sets intended for use only on Christmas trees, the prior Customs rulings on lighted garland sets, such as, HQ 960790, dated November 4, 1997, HQ 960117, dated September 16, 1997, and HQ 958221, dated August 7, 1995, have been revoked by operation of law.
Given the basic design of the artificial pine garland lighting sets and the use of the garlands, they are classified as "other" electric lamps and light fittings under subheading 9504.40.80, HTSUS, and not as lighting sets for Christmas trees.
HOLDING:
The electric garlands with artificial pine foliage light sets are classifiable in subheading 9405.40.80, HTSUS, as "other electric lamps and lighting fittings." NY B86191, dated July 1, 1997, has been revoked by operation of law in accordance with Primal Lite, Inc. v. United States.
Sincerely,
John A. Durant, Director
Commercial Rulings Division