HQ 953189

April 15, 1993

CLA-2 CO:R:C:F 953189 LPF

CATEGORY: Classification

TARIFF NO.: 9405.40.60

District Director

U.S. Customs Service

300 South Ferry Street - Terminal Island

Room 2017

San Pedro, CA 90731

RE: Decision on application for further review of Protest No.

2704-92-101481, filed April 6, 1992, concerning

classification of outdoor electric light sculptures; Heading

9405, HTSUSA, lamps and lighting fittings; Not 3926, articles

of plastics; Not 9505, festive article; HRL\'s 952890, 952520,

951422, 950041, 088233

Dear Sir:

This is a decision on a protest filed April 6, 1992, against

your decision in the classification of certain merchandise

liquidated on February 21, 1992 and February 28, 1992.

FACTS:

The articles at issue, imported from Hong Kong, by Costco

Wholesale Corporation, are outdoor electric light sculptures from

Mr. Christmas, item 10708. The sculptures, composed of pre-

assembled wire frames, covered by colored, plastic tubes of

chasing lights, depict the outlines of various figures, including

reindeer, Santa Claus, a Christmas tree, and an angel. Each

figure is supported by an attached metal stand to anchor the

lights on a lawn or to hang them on a wall and is equipped with a

power supply cord and a variable speed control. An electrical

wire harness incorporates light sockets and bulbs, which are

replaceable.

The protestant entered the articles under subheading

3926.40.00, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), as \"Other articles of plastics and articles

of other materials of headings 3901 to 3914: Statuettes and other

ornamental articles,\" at a duty rate of 5.3 percent ad valorem.

You classified the articles under subheading 9505.10.50,

HTSUSA, as \"Festive, carnival or other entertainment articles\...:

Articles for Christmas festivities\...: Other: Other,\" at a duty

rate of 5.8 percent ad valorem.

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We understand, however, you now maintain that neither the

liquidated nor the claimed classification is correct. In your

opinion, the articles are classifiable under subheading

9405.40.60, HTSUSA, as \"Lamps and lighting fittings\...not

elsewhere specified or included\...: Other electric lamps and

lighting fittings: Of base metal: Other,\" at a duty rate of 7.6

ad valorem.

ISSUE:

Whether the electric light sculptures are classifiable in

heading 3926 as other articles of plastics, in heading 9405 as

lamps and lighting fittings, or in heading 9505 as festive

articles.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI\'s) taken in their

appropriate order provide a framework for classification of

merchandise under the HTSUSA. Most imported goods are classified

by application of GRI 1, that is, 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 GRI\'s may then be

applied. The Explanatory Notes (EN\'s) to the Harmonized

Commodity Description and Coding System, which represent the

official interpretation of the tariff at the international level,

facilitate classification under the HTSUSA by offering guidance

in understanding the scope of the headings and GRI\'s.

Heading 9505 provides for, inter alia, festive, carnival and

other entertainment articles. The EN\'s to 9505 indicate 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 fibre, etc., for Christmas trees (e.g.,

tinsel, stars, icicles), artificial snow, coloured

balls, bells, lanterns, etc. Cake and other

decorations (e.g., animals, flags) which

are traditionally associated with a particular

festival are also classified here.

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\(2\) Articles traditionally used at Christmas

festivities, e.g., artificial Christmas trees

(these are sometimes of the folding type),

nativity scenes, Christmas crackers, Christmas

stockings, imitation yule logs\....

\* \* \*

In general, merchandise is classifiable in heading 9505,

HTSUSA, as a festive article when the article, as a whole:

1\. is of non-durable material or, generally, is not

purchased because of its extreme worth, or intrinsic

value (e.g., paper, cardboard, metal foil, glass fiber,

plastic, wood);

2\. functions primarily as a decoration (e.g., its primary

function is not utilitarian); and

3\. is traditionally associated or used with a particular

festival (e.g., stockings and tree ornaments for

Christmas, decorative eggs for Easter).

An article\'s satisfaction of these three criteria is

indicative of classification as a festive article. The motif of

an article is not dispositive of its classification and,

consequently, does not transform an item into a festive article.

Although the articles\' primary function is decorative, as

opposed to, utilitarian, when examining each light sculpture, as

a whole, it is evident that the articles are not traditionally

associated or used with the particular festival of Christmas.

The light sculptures are not ejusdem generis with those articles

cited in the EN\'s to 9505, as exemplars of traditional, festive

articles. We note, in particular, that Note 1(t) to Chapter 95,

HTSUSA, as well as the EN\'s to heading 9505, state that the

chapter (or heading) excludes electric garlands of all kinds

(heading 9405). Because the articles are similar to electric

garlands, this further indicates that they are not classifiable

in 9505 and must be classified elsewhere. We also note that the

light sculpture depicting an outline of Santa does not meet the

criteria for classification in 9505 as a Santa figure. See HRL\'s

952520, issued October 22, 1992 and 951422, issued November 25,

1992\.

Since no HTSUSA provision provides for the articles, as a

whole, they are not classifiable at the GRI 1 level. Thus, we

turn to GRI 3(a) to classify the articles in the HTSUSA heading

providing for one of its components: either the wire harness with

the light sockets and bulbs, in 9405; the plastic tubing, in

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3926; or the metal frame. We note that the EN\'s to 9405 indicate

that the heading includes specialized lamps, such as electric

garlands, including those fitted with fancy lamps for carnival or

entertainment purposes or for decorating Christmas trees. The

articles are potentially classified within 9405 because, similar

to the electric garlands referred to in the EN\'s, they are

composed of light sockets and light bulbs connected by a wire

harness and are for entertainment purposes.

GRI 3(a) explains, in pertinent part, that goods which are

classifiable under two or more headings are classified under the

heading which provides the most specific description of the

goods. However, all such headings are regarded as equally

specific when each refers to only part of the goods. Each of the

possible headings, in this case, refers to only part of the

goods. Since the headings are, thus, regarded as equally

specific, we do not classify the articles by GRI 3(a) but rather

by GRI 3(b).

GRI 3(b) provides that articles made up of different

components, that is, composite goods, shall be classified as if

they consisted of the component which gives them their essential

character. \"Essential character\" is the attribute which strongly

marks or serves to distinguish what an article is. EN VIII to

GRI 3(b) explains that bulk, quantity, weight, value or the role

of a constituent material in relation to the use of the article

are indicia of essential character.

The wire harness with the light sockets and bulbs imparts

the essential character of the articles. It distinguishes the

articles as electric light sculptures and allows the articles to

function as such. The plastic tubing, on the other hand, merely

covers the lighting component. As the articles are principally

designed to be used outdoors, we emphasize that without the

lighting, the articles cannot be seen in the dark and are merely

plastic tubing outlines of figures in the daylight. It is

apparent these articles are not purchased because of their

colored, plastic tubing, but rather are purchased because of the

ornamental illumination which the lighting creates, functioning

similarly to Christmas tree lighting sets and other types of

lighting.

The light sculptures are distinguishable from the Little

Village collection of HRL 950041, issued October 31, 1991 and the

framed mirrors of HRL 088233, issued May 1, 1991. In those cases

the articles or figures provided the essential character because

the lighting functions therein simply enhanced the articles,

which apparently were not purchased, primarily, for their

electrical characteristics.

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We reiterate that the EN\'s to 9405 indicate that the heading

includes \"electric garlands\" for carnival or entertainment

purposes or for decorating Christmas trees. It is our position

that this language does not limit classification within 9405 only

to \"electric garlands\" used for such purposes. We also maintain

that although the subject articles function similarly to

\"electric garlands,\" they do not qualify as lighting sets of the

kind used for Christmas trees. Because the harness and light

component, which imparts the articles\' essential character, is of

base metal, the appropriate eight digit subheading is 9405.40.60.

This decision is in accord with HRL 952890, issued March 16,

1993, where identical articles were classified in 9405.40.60.

HOLDING:

The outdoor electric light sculptures are classifiable in

subheading 9405.40.60 as \"Lamps and lighting fittings\...not

elsewhere specified or included;\...: Other electric lamps and

lighting fittings: Of base metal: Other.\" The general column one

rate of duty is 7.6 percent ad valorem.

Since the rate of duty under the classification indicated

above is more than the liquidated rate, you are instructed to

deny the protest in full. A copy of this decision with the Form

19 should be sent to the protestant.

Sincerely,

John Durant, Director