CLA-2 RR:CR:GC 962770 JRS
Ms. Ginny Poyer
ATICO International USA, Inc.
P.O. Box 14368
Ft. Lauderdale, FL 33302
RE: Reconsideration of NY D87521; Electric garland with plastic light covers; Primal Lite, Inc. v. United States
Dear Ms. Poyer:
This is in response to your letter of March 3, 1999, to the Customs National Commodity Specialist Division, New York, requesting reconsideration, in part, of NY D87521, dated February 17, 1999, on the classification of an electric light set made in China, item #W79A7370, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for reply. We note that the sample submitted has a label with item #W79A7370 is affixed to the back of the package, while item #618694 is printed on the front.
FACTS:
Item #W79A7370 is an electrical wire harness approximately 20 feet long containing twenty sockets with miniature clear light bulbs, which are fitted with removable white plastic covers molded in the shape of a draped sheet with black eyes and mouth to represent a "ghost-like" figure, and two (7 volts) spare bulbs. The light set is a straight line construction with
12-inch spacing between bulbs. The item is sold and packaged as a "Halloween light set" for indoor-outdoor use.
In NY D87521, Customs classified item #W79A7370 under subheading 9405.30.00, HTSUS, which provides for "lighting sets of a kind used for Christmas trees." You state that the appropriate classification of the light set is not as a Christmas light set, but as a Halloween light set. We interpret your statement as a request that the lighting set be considered a festive article under subheading 9505.90.60, HTSUS, as the light set will be used as a decoration in the celebration of Halloween.
ISSUE:
Whether the Halloween electric light set with plastic "ghost-like" light covers is classifiable in heading 9505, HTSUS, as a festive article.
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.
Classification under heading 9505, HTSUS, is precluded by virtue of Note 1(t) in Chapter 95 and the Explanatory Note (B)(f) of heading 9505. Note 1(t) states that "[t]his chapter does not cover: [e]lectric garlands of all kinds (heading 9405)" and EN 95.05 (B)(f) states "[t]his heading also excludes...[e]lectric garlands of all kinds (heading 9405)." Since the light set at issue is a garland, it is precluded from classification in heading 9505 as a "festive article."
The EN to 94.05 states, in pertinent part, that "[t]his heading covers in particular:
(3) Specialised lamps, e.g.: ...; electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees)."
The issue is what subheading of heading 9405 is an electric garland with decorative plastic covers 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
A recent court case has directly addressed the classification of this type 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 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.
Inasmuch as the "Halloween lighting set" with plastic "ghost-like" covers are not intended for Christmas tree use but are intended for other purposes, they are classified as "other" electric lamps and light fittings under subheading 9504.40.80, HTSUS, not as lighting sets of a kind used for Christmas trees.
HOLDING:
The Halloween electric light set with plastic "ghost-like" covers is classifiable in subheading 9405.40.80, HTSUS, as "other electric lamps and lighting fittings." The classification of the "Halloween light set" of NY D87521 is hereby modified in accordance with Primal Lite, Inc. v. United States.
EFFECT ON OTHER RULINGS:
NY D87521, dated February 17, 1999, is modified, in part, to reflect the classification under subheading 9405.40.80, HTSUS, for item # #W79A7370.
Sincerely,
John A. Durant, Director
Commercial Rulings Division