# **HQ 967008**

June 29, 2004

### CLA-2 RR:CR:GC 967008 NSH

**CATEGORY:** Classification

**TARIFF NO.:** 9405.30.0010

Port Director

101 East Main Street

Norfolk, VA 23510

**RE:** Protest 1401-03-100172; Christmas light sets

Dear Port Director:

This is our decision on Protest 1401-03-100172, filed on behalf of Ace
Hardware Corporation, against your classification, under the Harmonized
Tariff Schedule of the United States (HTSUS), of Christmas light sets.
The entries under protest were liquidated on May 2, 2003, under
subheading 9405.30.00, HTSUS, and this protest was timely filed on July
29, 2003.

**FACTS:**

The merchandise at issue consists of four similar varieties of electric
light sets. Each set consists of a wire harness incorporating 100
equally spaced sockets for miniature bulbs. The light sets are all
UL-rated for both indoor and outdoor use on account of the strings being
made with waterproof sockets.

1)  Style No. 9826009 is approximately 32 feet in length and consists of
    100 clear miniature light bulbs.

2)  Style No. 9827007 is approximately 32 feet in length and consists of
    100 multicolored miniature light bulbs.

3)  Style No. 9830035 is approximately 46 feet in length and consists of
    100 clear miniature light bulbs.

4)  Model No. 9830027 is approximately 46 feet in length and consists of
    100 multicolored miniature light bulbs.

Protestant claims classification of these light sets under subheading
9405.40.80, HTSUS, which provides for "Other electric lamps and lighting
fittings: Other."

**ISSUE:**

Whether the subject electric string lights are classified as lighting
sets of a kind used for Christmas trees under subheading 9405.30.00,
HTSUS, or as other electric lamps and lighting fittings under heading
9405.40.80, HTSUS.

**LAW AND ANALYSIS:**

Merchandise is classifiable under the HTSUS in accordance with the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided such
headings or notes do not otherwise require, according to the remaining
GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and
Coding System represent the official interpretation of the tariff at the
international level. The ENs, although neither dispositive or legally
binding, facilitate classification by providing a commentary on the
scope of each heading of the HTSUS, and are generally indicative of the
proper interpretation of these headings. See T.D. 89-90.

The HTSUS provisions 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 light source, and parts thereof not elsewhere
      specified or included:

      0.  Lighting sets of a kind used for Christmas trees

> \* \* \* \* \* \*

40. Other electric lamps and lighting fittings:

> 9405.40.80 Other

We note initially that festive, carnival or other entertainment
articles, are provided for under heading 9505, HTSUS. However, chapter
95, Note 1(t), HTSUS, specifically excludes "electric garlands of all
kinds" and directs that they be classified under heading 9405, HTSUS.

In examining the competing subheadings within heading 9405, HTSUS, we
note that subheading 9405.30.00, HTSUS, is a "principal use" provision
within the meaning ascribed in *Primal Lite v. United States*, 15 F.
Supp. 2d 915 (CIT 1998); *aff'd* 182 F. 3d 1362 (CAFC 1999). In *Primal
Lite*, the court concluded that because subheading 9405.30.00, HTSUS, is
a principal use provision, it is therefore subject to Additional U.S.
Rule of Interpretation 1(a), HTSUS, which states as follows:

(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;

Additionally, the *Primal Lite* court, in discussing principal use, held
that "it is the use of the class or kind of goods being imported that is
controlling, rather than the specific use to which the importation
itself is put," i.e. goods need not be actually used in the same manner
as the entire class or kind in order to recognized as part of that class
or kind. CBP has repeatedly upheld this analysis by defining principal
use as the use of the class or kind of the merchandise at issue that
exceeds any other use. *See* HQ 964954, dated, April 18, 2002, HQ
963264, dated May 4, 2001, HQ 963032, dated July 24, 2000 and HQ 083885,
dated July 18, 1989. Therefore, to classify the subject merchandise, it
is necessary to determine whether it belongs to the class or kind of
goods that are recognized as being principally used for the decoration
of Christmas trees or for other purposes not necessarily relating to
Christmas trees.

The issue of class or kind was discussed 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*). In
*Carborundum*, the court, in determining whether an iron-silicon alloy
was in fact used for the manufacture of ferrous metals, noted that
"\[t\]he importer must establish that the imported merchandise belongs
to a class or kind of merchandise which is **commonly used** as raw
materials in the manufacture of ferrous metals." \[Emphasis added\].
Consequently, even if the merchandise was not found to be used
specifically for the manufacture of ferrous metals, it could still be
considered a part of that class or kind of merchandise if it satisfied
certain criteria.

To establish class or kind, the *Carborundum* court articulated, and CBP
has repeatedly applied, a variety of factors, including: (1) the general
physical characteristics of the merchandise; (2) the expectation of the
ultimate purchaser; (3) the channels of trade in which the merchandise
moves; (4) the environment of sale (accompanying accessories, manner of
advertisement and display); and (5) the usage of the merchandise.
Although application of these factors is often essential to determine
class or kind, it is additionally significant to note that not every
factor can or should be applied in each instance and that applicability
is dependent upon the particular merchandise at issue, as well as the
available information.

There is no argument that the lights at issue are intended for use
during the Christmas holiday season. The physical characteristics of
these lights make it apparent that they have been designed for this
purpose. Each of the four styles consists of an electric garland that
measures either thirty-two feet or forty-six feet in length and contains
one-hundred clear or multicolored miniature light bulbs that can be set
either to glow steadily or else flash. The packaging for these lights
identifies them as "Christmas lights" for both indoor and outdoor use
and pictures dozens of miniature evergreen trees.

The Protestant states that the light sets at issue are specifically
designed for either indoor or outdoor use as evidenced by the fact that
the strings are made with waterproof sockets, and that they are not
intended solely for indoor use on Christmas trees. Because of this dual
indoor and outdoor use, as well as the statements regarding the
potential for varied indoor use, it is asserted they are not limited to
decorating only Christmas trees. As a result, they could be used, for
example, to decorate a range of indoor and outdoor objects, including
windows, mantels, patios, roofs, banisters, shrubs and archways during
the Christmas season. To support this contention the Protestant notes
several rulings wherein CBP classified lighting sets capable of both
indoor and outdoor use under subheading 9405.40.80, HTSUS. *See* NY
I87552, dated November 14, 2002, NY I86005, dated September 20, 2002, NY
I83134, dated July 10, 2002 and NY I83484, dated August 5, 2002.

Regarding this dual indoor and outdoor use, CBP does not believe that
this factor by itself is determinative for finding the lights at issue
are part of a class or kind of light that is principally used for
decorative purposes other than Christmas trees. CBP also does not
believe that this factor was determinative in the rulings cited by the
Protestant for the classification of the merchandise therein under
subheading 9405.40.80, HTSUS. Although the lights at issue can be used
outdoors, we note that not only can these lights be used to decorate
outdoor Christmas trees, but that waterproof sockets can be of benefit
to indoor Christmas trees, especially those which are placed in water,
or else to protect against potential electrical accidents. CBP has
repeatedly classified electric string lights capable of both indoor and
outdoor use under subheading 9405.30.00, HTSUS, when it was determined
that they were of the class or kind of merchandise that was principally
used for decorating Christmas trees. *See* HQ 966882, dated March 10,
2004, NY I83154, dated July 17, 2002, NY I83156, dated July 17, 2002, NY
J89048, dated November 7, 2003, NY I83157, dated July 10, 2002, NY
I82127, dated July 1, 2002 and NY I82362, dated July 1, 2002.

In contrast, light sets classified under subheading 9405.40.80, HTSUS,
because of certain physical characteristics, are recognized as not being
of the class or kind of merchandise that is principally used for
decorating Christmas trees. *See* NY J84195, dated June 19, 2003
(poinsettia light sets), NY I83486, dated August 5, 2002 (net light
sets), NY I81176, dated May 20, 2002 (lighting set item 70305-100
consisting of electric lights in the shape of icicles) and HQ 962901,
dated September 28, 2001 (electric garland with plastic covered light
covers in the form of dreidels, a recognized symbol of Chanukah),

Finally, because of the aforementioned packaging of the merchandise and
the likelihood that it will be sold in the Christmas section of stores
during the holiday season, CBP believes that the expectation of the
ultimate purchaser is that these lights are intended for use on
Christmas trees. Although CBP concedes consumers may also purchase these
lights with the intent to use them on objects other than Christmas
trees, CBP believes that the principal use of light sets of this type is
for Christmas trees and notes that substantially similar merchandise has
repeatedly been classified under subheading 9405.30.00, HTSUS. *See* HQ
966882, dated March 10, 2004, NY J89048, dated November 7, 2003, NY
J83867, dated May 7, 2003, NY I85459, dated September 12, 2002, NY
I83664, dated July 17, 2002, NY I82126, dated July 1, 2002 and NY
I83133, dated July 10, 2002.

In considering the foregoing, CBP believes that, despite the fact these
lights may be designed in part for use both inside and outside a house,
and for decorating objects other than Christmas trees, they are
nevertheless representative in every respect of the class or kind of
light that is recognized as being principally used for Christmas trees.
As such, they are classified under subheading 9405.30.00, HTSUS, as
"Lighting sets of a kind used for Christmas trees."

It should be noted, however, that CBP recognizes the extensive and
broadening use of these types of electric lights during the Christmas
holiday season for purposes other than decorating a Christmas tree.
Although in many instances there are factors that clearly differentiate
between lights designed for use on Christmas trees and lights designed
for use on, for example, mantles, banisters, window frames and the
façade of houses, we equally noted instances when there is little or no
discernable difference between these lighting sets, despite any
intention by the manufacturer that they be designed or advertised for a
different use. However, because the decoration of Christmas trees still
constitutes the principal use for this type merchandise, and the HTSUS
does not detail varying provisions to account for this expanded use,
lighting sets not designed or used specifically for Christmas trees, if
determined to be part of the class or kind of lighting set principally
used for decoration of a Christmas tree, are still classified under
subheading 9405.30.00, HTSUS.

**HOLDING:**

The electric string light sets are classified under subheading
9405.30.00, HTSUS, as "Lighting sets of a kind used for Christmas
trees." The 2003 column one rate of duty is 8.0 percent *ad valorem*.

Duty rates are provided for your convenience and are subject to change.
The text of the most recent HTSUS and the accompanying duty rates are
provided on the World Wide Web at
[www.usitc.gov](http://www.usitc.gov/).

> You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB,
January 2002, pp. 18 and 21), 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 CBP personnel, and to the
public on the CBP Home

Page on the World Wide Web at [www.cbp.gov](http://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