CLA-2 RR:CR:GC 960790 PH
Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-96-103830; artificial Canadian pine garland;
article with artificial pine foliage and lights with connector
cord; lighting fittings, lighting sets of a kind used for
Christmas trees; articles for Christmas festivities; principal
use; U.S. Additional Note 1(a); GRI 1; GRI 6; subheading
9505.10.40; Chapter 95, Note 1(t); EN 94.05; HQ's 960590; 958221;
NY 814073
Dear Port Director:
This is in response to Protest 2704-96-103830, which
pertains to the tariff classification of certain artificial pine
garlands with lights under the Harmonized Tariff Schedule of the
United States (HTSUS). A photograph was submitted for our
review.
FACTS:
The merchandise under protest consists of Canadian pine
garlands with 35 lights (item T25290 has multi-colored lights;
item T20286 has clear lights) on a connector cord. The garlands
are stated to have artificial or "plastic" pine needles, are 9
feet long, and have 240 tips. The photograph shows the sockets
and lights on the connector cord entwined in the branches of the
garland.
An entry of May 31, 1996, is included in the protest. The
entry was liquidated on September 27, 1996, with classification
of the protested items under subheading 9405.30.00, HTSUS.
On December 20, 1996, the importer protested, contending
that the described garlands should be classified under subheading
9505.10.40, HTSUS, and citing NY 814073, dated September 20,
1995. Further review was requested and granted.
The competing subheadings, as of the time under
consideration, are as follows:
9405.30.00: [l]amps and lighting fittings ... not
elsewhere specified or included ...: ...
[l]ighting sets of a kind used for Christmas
trees.
The 1996 general column one rate of duty for goods classifiable
under subheading 9405.30.00 is 8% ad valorem.
9505.10.40 [f]estive ... articles ...: [a]rticles for
Christmas festivities and parts and
accessories thereof: ... [other]: [o]f
plastics.
Goods subject to the column one rate of duty and classifiable
under subheading 9505.10.40 receive duty-free treatment.
ISSUE:
Are the artificial pine garlands with lights on a connector
cord classifiable as lighting sets of a kind used for Christmas
trees or as festive articles; articles for Christmas festivities?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and that the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and provided
the headings or notes do not require otherwise, according to GRIs
2 through 6. GRI 6 states that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, by appropriate substitution of
terms, to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable. For the purposes
of GRI 6, the relative section, chapter, and subchapter notes
also apply, unless the context otherwise requires.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
Festive, carnival or other entertainment articles, to
include garlands, are provided for in heading 9505. However,
Chapter 95, Note 1(t), HTSUS, specifically excludes garlands of
all kinds, and refers them to heading 9405. In addition, the EN
for heading 9405, EN 94.05, provides that the heading covers "in
particular: ... [s]pecialised lamps, e.g.: ... electric garlands
(including those fitted with fancy lamps for carnival or
entertainment purposes or for decorating Christmas trees)."
The protestant cites NY 814073, dated September 20, 1995.
On the basis of Chapter 95, Note 1(t), HTSUS, NY 814073 was
specifically revoked by HQ 960590, dated August 6, 1997 (August
27, 1997, Customs Bulletin and Decisions, vol. 31, no. 35, p.10).
Furthermore, HQ 958221, dated August 7, 1995, classified a
lighted Canadian pine garland identical in all material respects
to the merchandise in this case (consisting of a "Christmas-like
PVC garland measur[ing]] approximately 9 feet in length and
possess[ing] an electrical wire harness with 50 sockets securing
50 lights entwined in its branches] in subheading 9405.30.00,
HTSUS, because of evidence that, in the trade, wire harnesses
with light sockets and bulbs belong to a class or kind of goods
the principal use of which is as Christmas tree lighting sets.
Because of the exclusion in Chapter 95, Note 1(t), HTSUS,
the merchandise is classifiable in heading 9405, rather than
heading 9505 (GRI 1). Pursuant to GRI 6, subheadings at the same
level of heading 9505 are comparable. Subheading 9405.30.00,
HTSUS, is a "use" provision. If an article is classifiable
according to the use of the class or kind of goods to which it
belongs, as is true of this provision, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that:
In the absence of special language or context which
otherwise requires-- (a) 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.
In other words, the article's principal use in the United States
at the time of importation determines whether it is classifiable
within a particular class or kind (principal use is distinguished
from actual use; a tariff classification controlled by the latter
is satisfied only if such use is intended at the time of
importation, the goods are so used and proof thereof is furnished
within 3 years after the date the goods are entered (U.S.
Additional Note 1(b); 19 CFR 10.131 - 10.139).
Christmas tree lighting sets include, but are not limited
to, traditional seasonal colors. They are not limited by length,
but rather by the number of bulbs, typically 25, 50, or 100 per
strand, but such sets may include as few as 10 bulbs. The
merchandise under consideration, artificial Canadian pine
garlands with 35 lights (either multi-colored or clear) on a
connector cord entwined in the branches of the garland, belong to
a class or kind of goods the principal use of which is as
Christmas tree lighting sets (HRLs 958221, dated August 7, 1995,
and 950590, dated August 6, 1997).
HOLDING:
The artificial pine garlands with lights on a connector cord
are classifiable as lighting sets of a kind used for Christmas
trees, in subheading 9405.30.00, HTSUS.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, by your office 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 take
steps to make the decision available to Customs personnel via the
Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division