# **HQ 967408**

**February 9, 2005**

### CLA-2 RR:CR:GC 967408 MG

**CATEGORY:** Classification

**TARIFF NO.:** 9405.30.0040

Acting Assistant Port Director

Trade Operations

Chicago, Illinois 60607

**RE:** Protest 3901-04-100967; Christmas light sets

Dear Port Director:

This is our decision on Protest 3901-04-100967, filed on behalf of New
England Pottery, Co., Inc., against your classification, under the
Harmonized Tariff Schedule of the United States (HTSUS), of Christmas
light sets. The entries under protest were liquidated on April 2, 2004,
under subheading 9405.30.0040, HTSUS, and this protest was timely filed
on July 1, 2004.

**FACTS:**

The merchandise at issue consists of two varieties of Christmas stringer
electric light sets ("Christmas light sets"). They are 25 feet and 100
feet in length and carry C7 lamps, which are principally used to
decorate Christmas trees. Protestant claims classification of these
light sets under subheading 9405.40.8000, 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 9405.30.0040,
HTSUS, or as other electric lamps and lighting fittings under heading
9405.40.8000, 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:

> 9405.30.0040 Other.
>
> \* \* \* \* \* \*

40. Other electric lamps and lighting fittings:

> 9405.40.8000 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 be 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. Protestant cites to HQ 963264,
dated May 4, 2001, in support of its purported classification. However,
protestant has failed to adequately prove that the subject Christmas
light sets do not belong to the class or kind of goods generally
recognized as being principally used for the decoration of Christmas
trees. In fact, some of the product's literature states that the lights
"can decorate trees or be hung around your house using mounting
accessories" and that they are "safe for both indoor and outdoor use so
you can decorate both the tree and the house for the holidays!"
Furthermore, the literature submitted with the protest shows the lights
being used to decorate a Christmas tree.

Although the subject Christmas light sets have a 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 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, HQ 967008, dated June 29, 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.

Given the aforementioned, 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 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 represent
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."

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. 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 9405.30.0040, HTSUS, as "Lighting sets
of a kind used for Christmas trees: Other." See HQ 967008.

**HOLDING:**

The electric string light sets are classified under subheading
9405.30.0040, HTSUS, as "Lighting sets of a kind used for Christmas
trees: Other." The 2003 column one rate of duty is 8.0 percent *ad
valorem*.

Duty rates are provided for the Protestant's 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