**HQ** 963264

May 4, 2001

CLA-2 RR:CR:GC 963264 TF

**CATEGORY:** Classification

**TARIFF NO.:** 9405.40.80; 9505.10.25

Port Director of Customs

610 S. Canal Street

Chicago, IL 60607

**RE**: Protest 3901-99-101340; electric garlands; light sets

Dear Port Director:

The following is our decision regarding Protest 3901-99-101340 filed
against your classification, under the Harmonized Tariff Schedule of the
United States (HTSUS), of certain electric garlands. The three entries
under protest were liquidated on July 16, 1999, July 23, 1999, and July
30, 1999, and the protest was timely filed on October 4, 1999. In
preparing this decision, consideration was also given to a supplemental
submission by counsel for the protestant dated December 21, 2000.

**FACTS:**

The articles under protest consist of various styles of electric light
sets which are composed of a wire harness incorporating different
numbers of sockets and light bulbs. The articles are described as
follows:

1.  UL 50 Clear STS Indoor/Outdoor Light (Item #873644)

2.  UL 50 STS Indoor/Outdoor Light (Item #873645)

3.  UL 105 Motion Clear Chasing Light (Item #897095)

4.  UL 105 Motion Multiple Color Chasing Light (Item #987096)

5.  UL 70 Solid Red Light Set (Item #896661)

6.  UL 70 Solid Blue Light Set (Item #896662)

7.  UL 70 Solid Green Light Set (Item #896663)

8.  UL 150 STS Indoor/Outdoor Clear Light (Item #899234)

9.  UL 150 STS Outdoor Multi Light (Item #899235)

10. UL 150 Curtain Light Ice (Item #899229)

11. UL 100 Curtain Light Ice (Item #899231)

12. UL 100 Orange Light with 20 Halloween light covers (Item \# 896853)

13. 9" Angel Tree Top 10L/1F, Clear Bulb with Porcelain Head/arms (Item
    #886461)

14. 9" Black Angel Tree Top 10L/1F Clear Bulb, Black Porcelain Face &
    Hands (Item #890022)

15. 20" Plastic Sculpture w/50L Clear Bulbs in the shape of various
    objects, such as a reindeer, Santa, a tree, an angel, a candle and a
    wreath (Item #889029)

16. Clear and multi-colored grid lights

17. Battery operated Plain Lite Set (Item #88047)

18. 5 Light Candolier (Item #897146)

In a letter of May 22, 2000, the protestant requested that Protest
3901-99-101340 serve as the lead protest for the following protests:

+-----------------------------------+-----------------------------------+
| 1001-99-185524                    | 3901-99-110181                    |
+-----------------------------------+-----------------------------------+
| 1512-99-100097                    | 3901-99-101198                    |
+-----------------------------------+-----------------------------------+
| 1703-99-100198                    | 3901-99-101340                    |
+-----------------------------------+-----------------------------------+
| 1703-99-100208                    | 3901-99-101475                    |
+-----------------------------------+-----------------------------------+
| 2704-99-102300                    | 3901-99-101527                    |
+-----------------------------------+-----------------------------------+
| 2704-99-102361                    | 3901-99-101547                    |
+-----------------------------------+-----------------------------------+
| ::: Definition-Term               | 3901-99-101556                    |
| 2704-99-102417                    |                                   |
| :::                               |                                   |
+-----------------------------------+-----------------------------------+
| 2704-99-102848                    | 4503-99-100034                    |
+-----------------------------------+-----------------------------------+
| 2704-99-102855                    | 4503-99-100037                    |
+-----------------------------------+-----------------------------------+
| 2704-99-103000                    | 4503-99-100041                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100676                    | 4503-99-100045                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100677                    | 4909-99-100065                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100678                    | 4909-99-100066                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100693                    | 4909-99-100071                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100708                    | 5301-99-100249                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100749                    | 5301-99-100275                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100835                    | 5301-99-100342                    |
+-----------------------------------+-----------------------------------+
| 2809-99-100883                    |                                   |
+-----------------------------------+-----------------------------------+

The protestant entered the merchandise on various dates in July, August,
September and October 1998 under subheading 9405.40.80, HTSUS, which
provides for other electric lamps and lighting fittings, other than of
base metal. The entries were liquidated under subheading 9405.30.00,
HTSUS, which provides for "lighting sets of a kind used for Christmas
trees".

**ISSUE:**

Whether the subject light articles are classifiable as lighting sets of
a kind used for Christmas trees in subheading 9405.30.00, HTSUS, or as
other electric lamps and lighting fittings, other than of base metal, in
subheading 9405.40.80, HTSUS, or as festive articles in heading 9505,
HTSUS?

**LAW AND ANALYSIS**:

Merchandise is classifiable under the Harmonized Tariff Schedule of the
United States (HTSUS) in accordance with the General Rules of
Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall
be determined according to the terms of the headings and any relative
Section or Chapter Notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, HTSUS, and if the headings or
notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS,
may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitutes the official interpretation of the HTSUS. The ENs,
although not dispositive, are used to determine the proper
interpretation of the HTSUS by providing a commentary on the scope of
each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128
(August 23, 1989).

The HTSUS headings and legal notes under consideration are as follows:

> Chapter 94, This chapter does not cover:
>
> Note 1(l) (l)Toy furniture or toy lamps or lighting fittings (heading
> 9503), billiard tables or other furniture specially constructed for
> games (heading 9504), furniture for magic tricks or decorations (other
> than electric garlands) such as Chinese lanterns (heading 9505).
>
> 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:
>
> 9405.30.00 Lighting sets of a kind used for Christmas trees
>
> 9405.40 Other electric lamps and lighting fittings:
>
> 9405.40.80 Other
>
> \* \* \* \*
>
> Chapter 95,
>
> Note 1(t) This chapter does not cover electric garlands of all kinds
> (heading 9405).

9505. Festive, carnival or other entertainment articles, including magic
      tricks and practical joke articles; parts and accessories thereof.

> 9505.10 Articles for Christmas festivities and parts and accessories
> thereof:
>
> Christmas ornaments:
>
> Other:
>
> 9505.10.25 Other
>
> 9505.90 Other
>
> 9505.90.60 Other:

\* \* \* \*

The protestant claims that items 1 through 9 are electric garlands not
limited to those "of a kind used for Christmas trees" as provided by
subheading 9405.30.00. Further, the protestant asserts that items 13
through 16 are festive articles classifiable in heading 9505 and that
all of the liquidated articles' classification is inconsistent with
*[Primal Lite, Inc. v. United States]{.underline}*, 15 F.Supp. 2d 915
(Ct. Int'l Trade 1998), *aff'd* 182 F.3d 1362 (CAFC 1999).

[Webster's 3^rd^ New International Dictionary of the English
Language]{.underline} (unabridged) (1993) defines a garland as "a wreath
or festoon of leaves or flowers to be worn on the head or used to
decorate an object". [Id.]{.underline} at 936. An article is an electric
garland if it is able to be hung or displayed and is composed of lights
which are powered by an electrical source attached by a power cord to a
battery or plug. *See also* [HQ]{.underline} 952832, dated February 19,
1993, (describing a "Holiday Carousel" electric music garland).

As items 1 through 9 qualify as electric garlands as defined above, the
legal notes set forth direct classification in heading 9405 at GRI 1. We
note that EN 94.05(I)(3) states that heading 9405 provides, in pertinent
part, for "electric garlands (including those fitted with fancy lamps
for carnival or entertainment purposes or for decorating Christmas
trees)".

In their argument, the protestant contends that there are important
similarities between the instant articles and the goods of the *[Primal
Lite]{.underline}* decision. The protestant contends that as the instant
articles and the *[Primal Lite]{.underline}* articles are non-Christmas
articles which involve the same competing subheadings---9405.30.00 and
9405.50.80\--the instant articles' are erroneously classified in
subheading 9405.30.00, which provides for lighting sets of a kind used
for Christmas trees.

Both the Court of International Trade (CIT) and the Court of Appeals for
the Federal Circuit (CAFC) agreed in *[Primal Lite]{.underline}* that
the importations were inappropriately classified in subheading
9405.30.00, as the plaintiff's affidavit 's indicated that the goods
were not created as Christmas tree decorations nor for use during the
Christmas holiday. Considering subheading 9405.30.00 as a "use"
provision, the CAFC noted "\[b\]ecause the classification turns on
whether the imported lighting sets are of a kind used for Christmas
trees", subheading 9405.30.00 requires the "use in connection with
Christmas trees \[to\] be the predominant or principal use of those
goods that are commercially fungible with the imported goods. *See*
*[Primal Lite]{.underline}* at 1362.

The CAFC also referred to Additional Rule of Interpretation 1 (ARI 1) of
the HTSUS which governs tariff classifications which are controlled by
use. ARI 1 provides, in pertinent part, as follows:

1\. 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.

Principal use can be defined as an article's use which exceeds any other
single use. *See* [HQ]{.underline} 083885, dated July 18, 1989. To prove
principal use, the protestant must demonstrate that the subject light
sets' principal use is of a kind used for other than Christmas trees.

With respect to the items 1 through 9 (items \# 873644; 873645; 897095;
987096; 896661; 896662; 896663; 899234; 899235) (photographs provided),
indicate that they are designed for outdoor and indoor use. We agree
with the protestant and find this to be sufficient information that the
articles' principal use is other than as lighting sets of a kind for
Christmas trees. Thus, we find that these articles are classifiable as
"other electric lamps and lighting fittings, other than of base metal."
within subheading 9405.40.80.

The protestant describes the 100, 150 curtain or ice lights and 100
Orange Light with 20 Halloween light covers (items 10 through 12- \#
899229, 899231 and 896853), as articles designed for home exteriors in
that the long strand of lights may affix horizontally to the roofline
and the shorter light strands may hang vertically to produce the
appearance of hanging icicles. Further, the sample photos depict the
merchandise hanging on a home's exterior and describe them as
"superbrite bulbs and clear white wire" which "connect up to 3 sets of
lights to create a dramatic 19 \[and\] 26 feet curtain of
lights...capable of "expand\[ing\] to 19 feet of curtain lights". We
agree with the protestant and find that their principal use is as
indoor/outdoor electric lights for other than Christmas trees.
Therefore, they are classifiable in subheading 9405.40.80.

The protestant contends that the tree toppers (items 13 and 14) and the
grid light articles (item 16) are classifiable as festive articles in
heading 9505 and that the articles' classification within heading 9405
is inconsistent with *[Primal Lite]{.underline}*.

Heading 9505, HTSUS, provides *inter alia*, for festive, carnival or
other entertainment articles. The ENs to heading 9505 state, in
pertinent part, that the heading covers:

> \(A\) Festive, carnival or other entertainment articles, which in view
> of their intended use are generally made of non-durable material. They
> include:
>
> \(1\) Decorations such as festoons, garlands, Chinese lanterns, etc.,
> as well as various decorative articles made of paper, metal foil,
> glass fiber, etc., for Christmas trees (e.g., tinsel, stars, icicles),
> artificial snow, colored balls, bells, lanterns, etc.
>
> Cake and other decorations (e.g., animals, flags) which
>
> are traditionally associated with a particular festival are also
> classified here.

The tree topper articles (items 13 and 14) are three-dimensional
decorations placed on the top of a Christmas tree. Each is comprised of
porcelain head and arms, a plastic body and an acrylic halo that
contains electric lights at the back of the head.

Customs has previously classified tree toppers as festive articles
within subheading 9505.10.25, HTSUS. *See* HRL 962647, dated April 5,
2000 (holding a 5 Point Star Tree Topper and 11 light Mini-wreath Tree
Topper, both comprised of 11 electric bulbs as festive articles within
subheading 9505.10.25, HTSUS.)

Tree toppers are customarily Christmas tree decorations. The instant
articles, although enhanced by decorative electric lights, are not
classifiable as Chapter 94 lighting fixtures because they do not possess
the draping characteristics associated with garlands. Thus, they are
classifiable in heading 9505, as they are not excluded by Note 1(t) to
Chapter 95 which excludes electric garlands of all kinds.
[Id.]{.underline} (referring also to NYRL C81254, dated April 30, 1998,
which ruled on similar merchandise). Therefore, the instant tree toppers
(items 13 and 14) are classifiable within subheading 9505.10.25, HTSUS.

With respect to item 15, the 20" Plastic Tree Top Sculpture w/50L Clear
Bulbs, designed in various shapes of objects (such as a reindeer, Santa,
a tree, an angel, a candle and a wreath), Customs has previously treated
light sculpture articles as festive articles within subheading
9505.10.25.

This item is similar to light sculptures because it incorporates a
string of electric lights (which are not capable of being draped or
hung) which are affixed around a wire frame. As this item is of the same
class of merchandise principally, if not exclusively, used to decorate
the home during the Christmas holiday and meets festive criteria
outlined in *[Midwest of Cannon Falls, Inc. v. United
States]{.underline}*, 122 F.3d 1423 (Fed. Cir. 1997) and *[United States
v. Carborundum Company]{.underline}*, 63 CCPA 98, C.A.D. 1172, 536 F.2d
373 (1976), cert. denied, 429 U.S. 979, it is classifiable within
subheading 9505.10.25. *See also* [HQ]{.underline} 963198 dated
September 26, 2000 (classifying light sculptures created in styles of
doe, buck, Santa Claus, snowman, sleigh, angel and North Pole within
subheading 9505.10.25).

With respect to the clear and multi-colored grid lights, (item 16), they
are described as multiple strands of lights sold in quantities of 100,
150, 200 and 150 sets. They are electric garlands and are excluded from
heading 9505. However, we find insufficient evidence that their
principal use on Christmas trees exceeds any other use. Unlike the
articles in *[Primal Lite]{.underline}* which were not advertised nor
intended for use on Christmas trees, the subject lights' advertisement
show both use on Christmas trees and on a bush. Therefore, the clear and
multi-colored grid lights are classifiable within subheading 9405.40.80.

In the case of the Battery Operated Plain Lite Set (item 17)
(*hereinafter* referred to as "B/O Plain Lite Set"), the protestant
argues that the articles' design, which is composed of a "short string
of battery operated lights", precludes it from draping a Christmas tree.
The protestant adds, "\[its\] predominate use is as a decoration for
small items where an electrical outlet is not available." We agree and
believe that the article is used to decorate small areas such as mantles
and windows, not Christmas trees.

Further, the protestant refers to NYRL D89330, dated April 8, 1999, in
which Customs classified another B/O 10 light set (item #W74C8727) which
was composed of 45% plastic, 20% brass, 20% glass and 15% paper, within
subheading 9405.40.80. We find the description of the subject B/O Plain
Lite Set to be same as the B/O light set in NYRL D89330. Therefore, we
believe that the protestant has established that the B/O Plain Lite Set
is not light articles of a kind principally used on Christmas trees.
Therefore, the article is classifiable in subheading 9405.40.80, HTSUS.

With respect to item 18, a 5 Light Candolier (Item #897146), upon
liquidation, the article was classified as a lighting set of a kind for
Christmas trees within subheading 9405.30, HTSUS. The protestant
contends that the subject candolier is substantially similar to the
9-1/4" 3 Light Candolier and 9-1/4" 3 Light Candolier in
[HQ]{.underline} 962647 dated April 5, 2000, which was classified in
subheading 9505.10.25. We agree with the protestant that the instant
candoliers are similar to the candoliers in [HQ]{.underline} 962647.
Both articles are principally decorative as they do not "give off enough
light to illuminate a room". Further, neither contain an accepted symbol
of a recognized holiday but meet the use requirement outlined
*[Carborundum]{.underline}*. In accordance with the determination in
[HQ]{.underline} 962647, we find the instant candoliers are classifiable
in subheading 9505.10.25, HTSUS.

**HOLDING:**

Items 1-12, 16 and 17 are classifiable in subheading 9405.40.80, HTSUS,
which provides for "other electric lamps and lighting fittings, other
than of base metal."

Items 13, 14, 15, and 18 are classifiable within subheading 9505.10.25,
HTSUS, which provides for "festive, carnival or other entertainment
articles...parts and accessories thereof: Articles for Christmas
festivities and parts and accessories thereof: Christmas
ornaments:other:other."

The protest should be ALLOWED.

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 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.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

> Sincerely,
>
> John Durant, Director
>
> Commercial Rulings Division