CLA-2 RR:CR:GC 963264 TF

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.


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:

UL 50 Clear STS Indoor/Outdoor Light (Item #873644) UL 50 STS Indoor/Outdoor Light (Item #873645) UL 105 Motion Clear Chasing Light (Item #897095) UL 105 Motion Multiple Color Chasing Light (Item #987096) UL 70 Solid Red Light Set (Item #896661) UL 70 Solid Blue Light Set (Item #896662) UL 70 Solid Green Light Set (Item #896663) UL 150 STS Indoor/Outdoor Clear Light (Item #899234) UL 150 STS Outdoor Multi Light (Item #899235) UL 150 Curtain Light Ice (Item #899229) UL 100 Curtain Light Ice (Item #899231) UL 100 Orange Light with 20 Halloween light covers (Item # 896853) 9” Angel Tree Top 10L/1F, Clear Bulb with Porcelain Head/arms (Item #886461) 9” Black Angel Tree Top 10L/1F Clear Bulb, Black Porcelain Face & Hands (Item #890022) 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) Clear and multi-colored grid lights Battery operated Plain Lite Set (Item #88047) 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  2704-99-102417 3901-99-101556  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”.


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?


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).

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, 15 F.Supp. 2d 915 (Ct. Int’l Trade 1998), aff’d 182 F.3d 1362 (CAFC 1999).

Webster’s 3rd New International Dictionary of the English Language (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. 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 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 decision. The protestant contends that as the instant articles and the Primal Lite 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 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 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 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 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.

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. (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, 122 F.3d 1423 (Fed. Cir. 1997) and United States v. Carborundum Company, 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 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 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 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 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. In accordance with the determination in HQ 962647, we find the instant candoliers are classifiable in subheading 9505.10.25, HTSUS.


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


John Durant, Director
Commercial Rulings Division