CLA-2 CO:R:C:F 952890 LPF
District Director
U.S. Customs Service
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126
RE: Decision on application for further review of Protest No.
2809-92-100295, filed February 14, 1992, concerning
classification of outdoor electric light sculptures; Heading
9405, HTSUSA, lamps and lighting fittings; Not 3926, article
of plastic; Not 9505, festive article; HRL's 952520, 951422,
950041, 088233
Dear Sir:
This is a decision on a protest filed February 14, 1992,
against your decision in the classification of certain
merchandise liquidated on February 7, 1992.
FACTS:
The articles at issue, imported from Hong Kong, by Costco
Wholesale Corporation, are outdoor electric light sculptures from
Mr. Christmas, item 10708. The sculptures, composed of pre-
assembled wire frames, covered by colored, plastic tubes of
chasing lights, depict the outlines of reindeer, Santa Claus and
an angel. Each figure is supported by an attached metal stand to
anchor the lights on a lawn or to hang them on a wall and is
equipped with a power supply cord and a variable speed control.
An electrical wire harness incorporates light sockets and bulbs,
which are replaceable.
The protestant entered the articles under subheading
3926.40.00, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as "Other articles of plastics and articles
of other materials of headings 3901 to 3914: Statuettes and other
ornamental articles," at a duty rate of 5.3 percent ad valorem.
You classified the articles under subheading 9405.40.60,
HTSUSA, as "Lamps and lighting fittings...not elsewhere specified
or included...: Other electric lamps and lighting fittings: Of
base metal: Other," at a duty rate of 7.6 ad valorem.
-2-
ISSUE:
Whether the electric light sculptures are classifiable in
heading 3926 as other articles of plastics, in heading 9405 as
lamps and lighting fittings, or in heading 9505 as festive
articles.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported goods are classified
by application of GRI 1, that is, 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's may then be
applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 indicate 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 fibre, etc., for Christmas trees (e.g.,
tinsel, stars, icicles), artificial snow, coloured
balls, bells, lanterns, etc. Cake and other
decorations (e.g., animals, flags) which
are traditionally associated with a particular
festival are also classified here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs....
* * *
-3-
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
Although the articles' primary function is decorative, as
opposed to, utilitarian, when examining the light sculptures, as
a whole, it is evident that the articles are not traditionally
associated or used with the particular festival of Christmas.
The light sculptures are not ejusdem generis with those articles
cited in the EN's to 9505, as exemplars of traditional, festive
articles. We note, in particular, that Note 1(t) to Chapter 95,
HTSUSA, as well as the EN's to heading 9505, state that the
chapter (or heading) excludes electric garlands of all kinds
(heading 9405). Because the articles are similar to electric
garlands, this further indicates that they are not classifiable
in 9505 and must be classified elsewhere. We also note that the
light sculpture depicting an outline of Santa does not meet the
criteria for classification in 9505 as a Santa figure. See HRL's
952520, issued October 22, 1992 and 951422, issued November 25,
1992.
Since no HTSUSA provision provides for the articles, as a
whole, they are not classifiable at the GRI 1 level. Thus, we
turn to GRI 3(a) to classify the articles in the HTSUSA heading
providing for one of its components: either the wire harness with
the light sockets and bulbs, in 9405; the plastic tubing, in
3926; or the metal frame. We note that the EN's to 9405 indicate
that the heading includes specialized lamps, such as electric
garlands, including those fitted with fancy lamps for carnival or
entertainment purposes or for decorating Christmas trees. The
articles are potentially classified within 9405 because, similar
to the electric garlands referred to in the EN's, they are
composed of light sockets and light bulbs connected by a wire
harness and are for entertainment purposes.
-4-
GRI 3(a) explains, in pertinent part, that goods which are
classifiable under two or more headings are classified under the
heading which provides the most specific description of the
goods. However, all such headings are regarded as equally
specific when each refers to only part of the goods. Each of the
possible headings, in this case, refers to only part of the
goods. Since the headings are, thus, regarded as equally
specific, we do not classify the articles by GRI 3(a) but rather
by GRI 3(b).
GRI 3(b) provides that articles made up of different
components, that is, composite goods, shall be classified as if
they consisted of the component which gives them their essential
character. "Essential character" is the attribute which strongly
marks or serves to distinguish what an article is. EN VIII to
GRI 3(b) explains that bulk, quantity, weight, value or the role
of a constituent material in relation to the use of the article
are indicia of essential character.
The wire harness with the light sockets and bulbs imparts
the essential character of the articles. It distinguishes the
articles as electric light sculptures and allows the articles to
function as such. The plastic tubing, on the other hand, merely
covers the lighting component. As the articles are principally
designed to be used outdoors, we emphasize that without the
lighting, the articles cannot be seen in the dark and are merely
plastic tubing outlines of figures in the daylight. It is
apparent these articles are not purchased because of their
colored, plastic tubing, but rather are purchased because of the
ornamental illumination which the lighting creates, functioning
similarly to Christmas tree lighting sets and other types of
lighting fittings.
The light sculptures are distinguishable from the Little
Village collection of HRL 950041, issued October 31, 1991 and the
framed mirrors of HRL 088233, issued May 1, 1991. In those cases
the articles or figures provided the essential character because
the lighting functions therein simply enhanced the articles,
which apparently were not purchased, primarily, for their
electrical characteristics.
We reiterate that the EN's to 9405 indicate that the heading
includes "electric garlands" for carnival or entertainment
purposes or for decorating Christmas trees. It is our position
that this language does not limit classification within 9405 to
electric garlands per se. We also maintain that although the
subject lighting fittings function similarly to "electric
garlands," they do not qualify as lighting sets of the kind used
for Christmas trees. Because the harness and light component,
which imparts the articles' essential character, is of base
metal, the appropriate eight digit subheading is 9405.40.60.
-5-
HOLDING:
The outdoor electric light sculptures are classifiable in
subheading 9405.40.60 as "Lamps and lighting fittings...not
elsewhere specified or included;...: Other electric lamps and
lighting fittings: Of base metal: Other." The general column one
rate of duty is 7.6 percent ad valorem.
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision with the Form
19 should be sent to the protestant.
Sincerely,
John Durant, Director