CLA-2 RR:CR:GC 966104 BJB
Port Director
U.S. Customs Service
330 2nd Avenue South, Suite 560
Minneapolis, MN 55401
RE: Protest 3501-02-100078; Lamps and lighting fittings; Electric lighting cordsets
Dear Port Director:
This is our decision regarding Protest 3501-02-100078, filed on behalf of Commerce LLC T/A Good Tidings (protestant), against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain “electric lighting cordsets.” The entry under protest was liquidated on August 16, 2002, and this protest filed on November 7, 2002.
The protest and protestant’s application for further review were forwarded to this office for reply. A sample cordset with lighting fittings was submitted.
FACTS:
Protestant describes the subject goods as three models of electric lighting cordsets with multiple C-9 light bulb sockets (lighting fittings), numbered L21002, L20950, and L2100. Each model cordset is a different length, with a different number of lighting fittings, and an interconnecting plug on each end of a dark green wire cord.
Protestant’s April 29, 2002 invoice provides, under the heading “Description of Goods,” that these three models are “LIGHT SETS[,]” made with wire harnesses, lighting fittings, and plugs intended for extended outdoor use. Model L21002 is described on protestant’s invoice, as 30 feet long with 10 lighting fittings; model L2100, as 1000 feet long (no number of lighting fittings is provided); and model L20950, as 15 feet long with 5 lighting fittings. All of the lighting fittings, for these models, are made for C-9 light bulbs. At entry no C-9 light bulbs were included with the subject goods.
The sample lighting cordset provided is different than each of the subject models, as they are described in the available record. The subject sample is a 25-foot long light set with 25 C-9 lighting fittings, each spaced approximately 11-inches apart. The lighting fittings for the three models subject of this protest are generally described as spaced 36-inches apart. The sample, marked “LL83241” on its electric cord, is not marked with any of the model numbers provided. Further, each of the sample’s lighting fittings has a plastic clip molded to its side. None of the subject models are described as having similar clips.
You classified the subject goods in subheading 9405.40.80, HTSUS, as “[l]amps and lighting fittings . . . and parts thereof, not elsewhere specified or included: Other electric lamps and lighting fittings: Other[.]”
Protestant claimed classification for these goods in subheading 8544.51.90, HTSUS, which provides for “[i]nsulated . . . wire, cable . . . and other insulated conductors, whether or not fitted with connectors . . .: Other electric conductors, for a voltage exceeding 80 V but not exceeding 1,000 V: Fitted with connectors: Other: Other[.]” In the alternative, protestant claims classification of the goods in subheading 9505.10, or 9505.90, HTSUS, as “[f]estive, carnival or other entertainment articles . . . ; parts and accessories thereof: . . . Articles for Christmas festivities and parts and accessories thereof:” or “Other[.]”
ISSUE:
Whether the subject electric lighting cordsets, with multiple lighting fittings, are classified in heading 8544, HTSUS, as “[I]nsulated . . . wire, . . . and other insulated electric conductors, whether or not fitted with connectors”; in heading 9405, HTSUS, as “[l]amps and lighting fittings. . .”; in heading 9505, HTSUS, which provides for “[f]estive, carnival or other entertainment articles . . . parts and accessories thereof[;]” or elsewhere?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration are as follows:
Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors:
Other electric conductors, for a voltage exceeding 80 V but not exceeding 1,000 V:
Fitted with connectors:
Other:
8544.51.90 Other
* * * * * * *
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:
Other electric lamps and lighting fittings:
Other
* * * * * * *
Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
Articles for Christmas festivities and parts and accessories thereof:
* * * * * * *
Other:
* * * * * * *
Heading 8544, HTSUS: Other Insulated Conductors
Protestant claims that the subject goods are classifiable in subheading 8544.51.90, HTSUS, as “. . . other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors: Other electric conductors, for a voltage exceeding 80 V but not exceeding 1,000 V: Fitted with connectors: Other: Other[.]”
Protestant further claims the subject goods are extendable electric cordsets with two connectors and multiple lighting fittings, principally used to “lin[e] walkways, driveways, and paths[,]” and are not classifiable in heading 9405, HTSUS, as “other lamps or lighting fittings.” Chapter 94, Legal Note 1(f), provides that the chapter does not cover: “[l]amps or lighting fittings of chapter 85[.]” Thus, if these goods are described in heading 8544, HTSUS, they are precluded from classification in heading 9405, HTSUS.
General ENs to Chapter 85, (A) SCOPE AND STRUCTURE OF THE CHAPTER, provide that this chapter covers:
“all electrical machinery and equipment, other than:
. . .
(6) Certain electrical goods not generally used independently, but designed to play a particular role as components, in electrical equipment, e.g., capacitors (heading 85.32) . . . lamps (heading 85.39) . . ..”
Accordingly, in Chapter 85, HTSUS, a number of headings describe lamps and lighting equipment. These headings include: heading 8512: “[e]lectrical lighting or signaling equipment (excluding articles of heading 8539), . . ., of a kind used for cycles or motor vehicles; parts thereof[;]” heading 8513: “[p]ortable electric lamps designed to function by their own source of energy . . . other than lighting equipment of heading 8512; parts thereof[;]” heading 8515: “[e]lectric (including electrically heated gas), laser or other light or photon beam, . . . or plasma arc soldering, brazing or welding machines and apparatus . . .[;]” heading 8530: “[e]lectrical signaling, safety or traffic control equipment for railways, streetcar lines, subways, roads . . .[;]” and heading 8539: “[e]lectrical filament or discharge lamps, including sealed beam lamp units and ultraviolet or infrared lamps; arc lamps; parts thereof[.]”
All of the above-cited headings describe specific lamps, or specific lighting equipment that use conductors with connectors or plugs in electrical machinery or apparatus (e.g., lamps of a kind used for cycles or motor vehicles; electrical signaling, safety or traffic control equipment for railways, etc.; or those not dependent upon an external source of electricity for illumination). The subject goods are not of a kind used for cycles or motor vehicles. They do not provide signaling, railway safety, or traffic control functions, and they are not specialized lamps of heading 8539, HTSUS. The subject goods are, however, dependent upon an external source of electricity to provide illumination.
The lamps and lighting equipment in the headings of Chapter 85, HTSUS, are narrowly described and are, therefore, limited in their scope.
EN 85.44, in pertinent part, states:
Provided they are insulated, this heading covers electric wire, cable and other conductors (e.g., braids, strip, bars) used as conductors in electrical machinery, apparatus or installations. Subject to this condition, the heading includes wiring for interior work or for exterior use (e.g., underground, submarine or aerial wires or cables). These goods vary from very fine insulated wire to thick cables of more complex types.
. . .
Wire, cable, etc., remain classified in this heading if cut to length or fitted with connectors (e.g., plugs, sockets, lugs, jacks, sleeves or terminals) at one or both ends. The heading also includes wire, etc., of the types described above made up in sets (e.g., multiple cables for connecting motor vehicle sparking plugs to the distributor).
Although the subject goods have an insulated electric wire with plug and socket connectors, and multiple lighting fittings, there is no evidence in the record to support the conclusion that they are used as conductors in electrical machinery, apparatus or installations. Please see our analysis below with respect to heading 9405, HTSUS.
Heading 9505, HTSUS: Festive Articles; or Heading 9405, HTSUS: Lamps and Lighting Fittings
In the alternative, protestant claims that holiday electric lighting cordsets with light bulbs are “festive articles.” Protestant claims the subject goods are components of a “festive article,” an electric lighting cord set absent any festive light bulbs, decorative fringe, or garnishment, but still used for festive occasions.
Heading 9405, HTSUS, covers all lamps and lighting fittings, whether or not electric, not elsewhere specified or included. Heading 9505, HTSUS, provides, in pertinent part, for festive, carnival or other entertainment articles. Note 1(l) to Chapter 94 excludes from the coverage of the chapter “decorations (other than electric garlands) such as Chinese lanterns (heading 9505).” Therefore, it is indicated that a decoration such as a Chinese lantern is properly classified in heading 9505, HTSUS, and any other decorative lighting fitting or fixture would be principally considered to be classified in heading 9405, HTSUS. However, protestant has provided no documentary evidence to support a claim that the subject goods are classifiable as decorations substantially similar to Chinese lanterns.
Customs Regulation, 19 C.F.R. 174.13(a)(6) provides, that a protest shall contain the nature of and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision or refusal. The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. Customs will consider all relevant allegations that are supported by competent evidence. In action on a protest Customs lacks the legal authority to assume facts and arguments that are not presented, and therefore, not in the official record. Accordingly, Customs cannot assume evidence not in the available record concerning the classification of the subject goods as decorations substantially similar to Chinese lanterns.
Protestant further claims that the subject goods are used to celebrate multiple holidays or festive occasions, depending upon the color scheme of C-9 light bulbs, and decorative coverings, added to these goods after entry. Protestant claims that these cordsets are used for decorative Christmas lighting, but not for decorating Christmas trees. Again, there is no other evidence in the record to support these claims.
In Midwest of Cannon Falls, Inc. v. United States, Slip. Op. 96-19 (CIT, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, “when the article as a whole:
Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and
Is associated with or used on a particular holiday.”
Based on the available record, the subject lighting cordsets have no precious or semi-precious stones, or metal, and are not clad with precious metal, as such they meet the first Midwest criterion. However, there is no evidence in the record to support protestant’s claims that these goods function primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday. Thus, these goods fail to meet the second criterion.
Further, goods are to be classified according to their condition as imported. See XTC Products, Inc. v. United States, 771 F. Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). At entry these lighting cordsets were without light bulbs, festive or holiday covers, or ornaments. Thus, protestant’s claim that the subject goods will be combined with colored light bulbs, festive covers, and/or ornaments, and placed over the lighting fittings does not make them festive articles associated or used with a particular holiday, in their condition at entry. As such they fail to meet the third Midwest criterion.
Based upon a review of the goods subject to the Midwest decision, Customs is of the opinion that the court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.
In addition to the criteria listed above, the court considered the general criteria for classification set forth 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). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin, dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
Customs views these goods as principally functional decorative lighting cordsets. They are different from products readily found to be festive articles of heading 9505, HTSUS, in that they do not represent an accepted symbol of a particular recognized holiday. A green wire cord with multiple lighting fittings, for example, does not alone appear to represent Christmas, St. Patrick’s Day, or any other holiday, although a string of colored lights on a green cord, draped or hung on a fir tree outside during the Christmas season, is a well-recognized way to decorate Christmas holiday trees.
With respect to the Carborundum factors, supra, the general physical characteristics of these goods are that they are generally made for extended outdoor use. We note that the plug and socket ends of these cords have a plastic latching device to prevent them from being easily separated or unplugged by inclement weather conditions. In addition, the electric cords and lighting fittings are dark green in color and blend in with a range of outdoor foliage. Therefore, they are not limited to use during any one holiday season.
Protestant claims that purchasers buy these goods to line and provide lighting for outdoor driveways and walkways. In HQ 965248, dated July 26, 2002, Customs determined that, under the language of the HTSUS, articles that light up, but are of a decorative nature, rather than being used to provide usable light for illuminating an area, are provided for under heading 9405, HTSUS. The effectiveness of the illumination provided by the subject lighting cordsets is limited by the size of their C-9 light bulb fittings, and the general spacing of the lighting fittings at 36-inch intervals. These limitations would not provide sufficient illumination to be the principal light for an outdoor event, or walkways and driveways. Moreover, protestant has provided no evidence to support this claim. Additionally, there is no documentary evidence of channels of trade, environment of sale, or advertising for these goods.
Based on the available record, the expectations of the ultimate purchaser would be to buy this product to provide outdoor decorative lighting. HQ 962309, dated September 30, 1999, and HQ 962901, dated September 28, 1999, describe a lighting cord set of a kind used for Christmas trees as one particular type of article of decorative lighting provided for in heading 9405, HTSUS, (subheading 9405.30.00, HTSUS). Further, lighting cordsets, e.g., electric garlands, which are not intended for Christmas trees also fall within this heading, in subheading 9405.40.80, HTSUS. See HQs 962309, dated September 30, 1999, and 962901, dated September 28, 1999, citing Primal Lite, Inc. v. United States, 15 F. Supp. 2d 915 (Ct. Int’l Trade 1998), aff’d, 182 F. 3d 1362 (CAFC 1999). In those cases, Customs relied upon the Court of Appeals for the Federal Circuit decision in Primal Lite, and held that “strands of electric lights that are packaged with decorative plastic covers depicting various objects, including fruit, vegetables, 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 economic practicality of using the subject light cordsets in a manner consistent with any class or kind of good of festive articles, does not have easy application within the facts of this case. Protestant claims that these articles fall into the class of seasonal festive articles. However, Customs disagrees that these goods are so designed and used as to be suitable for sale as festive articles, sold only in connection with a particular holiday, e.g., Christmas. We note that many goods have their best sales at the Christmas season, Teddy Bears, toy drums, fruitcakes, and some have claimed, even personal computers. This does not mean that they are “seasonal items,” or “festive articles” in the tariff sense. There is no doubt, for example, that so-called Christmas toys, fruitcakes, and personal computers are marked down after the passing of Christmas, but that fact alone does not confirm their identity as “festive articles.” See HQ 965767, dated July 31, 2002. Based on the instant record, there is no evidence to support protestant’s claims that these lighting cordsets are festive articles, or parts thereof. Therefore, we find that they are not provided for in heading 9505, HTSUS.
EN 94.05, in pertinent part, provides 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).
In HQ 963311, dated October 19, 2000, Customs cited Webster’s 3rd New International Dictionary of the English Language (unabridged;1993), to define “garland” as “a wreath or festoon of leaves or flowers to be worn on the head or used to decorate an object.” Based on this definition, Customs determined that “[a]n article is an electric garland if it [is] able to be hung or displayed and is composed of a string of light bulbs which are powered by an electrical source either attached by a power cord, battery or plug.” See HQ 963311, supra.
Models L21002, and L20950, as described in the available record, are shorter electric lighting cordsets and significantly similar to the electric garlands described in Customs prior rulings, supra. As electric garlands, these two models are classified in heading 9405, HTSUS.
However, absent any evidence in the available record how model L2100, 1000 feet in length as described on the invoice submitted by the protestant, can be hung or displayed, or powered by an electrical source, Customs must not assume that this model is an electric garland. Nonetheless, based on the record and protestant’s description, we find that Model L2100 is described in heading 9405, HTSUS, as a lamp and lighting fitting.
At GRI 1, the subject goods are classified in subheading 9405.40.80, HTSUS, as “[l]amps and lighting fittings including . . . and parts thereof, not elsewhere specified or included . . .: Other electric lamps and lighting fittings: Other[.]”
HOLDING:
At GRI 1, the subject electric lighting cordsets with multiple lighting fittings are classified 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; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings: Other[.]”
You are instructed to DENY the protest in FULL.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 Customs personnel, and to the public on the Customs 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