OT:RR:CTF:CPMM H320199 KSG
Port Director U.S. Customs and Border Protection Port of Los Angeles
301 E. Ocean Boulevard
Suite 1400
Long Beach, CA 90802
Attn: Ann M. Purdy, Import Specialist RE: Application for Further Review of Protest No. 2704-20-147783; classification of Happy Birthday string lights Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-20-147783, timely filed by counsel on behalf of Family Dollar Services LLC (“Protestant”). The Protest pertains to the tariff classification of certain string lights, which the protestant entered under subheading 9405.40.84 of the Harmonized Tariff Schedule of the United States (“HTSUS”) and secondarily, under subheading 9817.95.05, HTSUS. It is the secondary classification that is at issue in this case.
The subject merchandise was entered by protestant on July 7, 2019. On May 29, 2020, CBP liquidated the entry under subheading 9405.40.84, HTSUS, which provides for “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: Other.”
On November 23, 2020, protestant filed a protest and AFR regarding the tariff classification of the subject merchandise claiming that the correct classification of the subject merchandise is subheading 9405.40.84 and secondarily, subheading 9817.95.05, HTSUS.
FACTS:
This case involves 13 battery-operated string lights which spell out “HAPPY BIRTHDAY.”
ISSUE:
Whether the string lights are properly classified in the secondary subheading of subheading 9817.95.05 as “Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.”
LAW AND ANALYSIS:
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 G RIs 2 through 6 may then be applied in order.
The HTSUS subheading under consideration is the following:
9817.95.05 Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States
Counsel cites to Wilton Industries v. United States, 493 F. Supp 2d 1294 (Ct. Intl Trade 2007), which classified, among other articles, bakeware with Happy Birthday molded into it in heading 9505, HTSUS, the provision for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.” We find the argument that the interpretation of heading 9505 and classification within that heading to not be germane to the issue of whether an article is properly classified in subheading 9817.95.05, HTSUS. The first requirement for classification in subheading 9817.95.05 is that the article be utilitarian. In this case, the article, string lights, is decorative and serves no utilitarian function. Therefore, the string lights in question are not properly classified in this subheading. Further, a birthday is not considered a “specific holiday in the United States” for the purposes of subheading 9817.95.05, HTSUS. Christmas and Halloween are examples of holidays in the United States that have been considered appropriate for articles that are classifiable in subheading 9817.95.05, HTSUS. A personal birthday is not a holiday of the United States. Accordingly, we find that the HAPPY BIRTHDAY string lights are not classified in subheading 9817.95.05, HTSUS.
The AFR is hereby DENIED.
HOLDING:
By application of GRIs 1 and 6, the string lights are classified in subheading 9405.40.84, HTSUS. The column one, general duty rate is 3.9% ad valorem.
You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution. Sincerely,
Allyson Mattanah for Craig T. Clark, Director Commercial and Trade Facilitation Division
cc: NIS Sandra Carlson and NIS Michael Chen, NCSD