CLA-2 OT:RR:CTF:TCM H066795 CkG
Port Director
Customs and Border Protection
Port of Chicago
9915 Bryn Mawr Rosemont, IL 60018
Re: Modification of HQ 963264; classification of Christmas light sets
Dear Port Director,
This is in reference to Headquarters Ruling Letter (HQ) 963264, issued to the Port Director in Chicago, Illinois, on May 4, 2001, with regard to Protest # 3901-99-101340, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of electric light sets. The articles were classified in subheading 9405.40.80, HTSUS, which provides for other electric lamps and lighting fittings, other than of base metal. Since the issuance of that ruling, Customs and Border Protection (CBP) has reviewed the classification of these items and has determined that the cited ruling is in error.
HQ 963264 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 963264 when notice of disposition of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).
However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This modification will not affect the entries which were the subject of Protest 3901-99-101340, but will be applicable to any entries of similar merchandise made 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify HQ 963264 was published on July 30, 2009, in Volume 43, Number 30, of the Customs Bulletin. CBP received one comment in response to this notice, which is addressed in the ruling.
FACTS:
At issue in HQ 963264 were eighteen styles of electric light sets composed of a wire harness incorporating different numbers of sockets and light bulbs. This modification pertains only to nine of the styles at issue in HQ 963264. The nine 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)
The protestant entered the merchandise 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”. In HQ 963264 the articles at issue were determined to be classified in subheading 9405.40.80, HTSUS.
ISSUE:
Whether the subject light sets 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 subheading 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 2 through 6.
The HTSUS provisions under consideration are as follows:
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….
Other electric lamps and lighting fittings:
Other…..
* * * * * * *
At GRI 1, there is no dispute that the instant merchandise is described by and is thus classifiable in heading 9405, HTSUS, as a lamp or lighting fitting, not elsewhere specified or included. The issue arises at the eight-digit level. Therefore, we begin the analysis using GRI 6. The issue is whether, at GRI 6, the instant lighting sets are of a kind used for Christmas trees.
We initially note that subheading 9405.30.00, HTSUS, is a principal use provision. See Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362, 1364 (Fed. Cir. 1999). In Primal Lite, the Court of Appeals for the Federal Circuit concluded that subheading 9405.30.00, HTSUS, is a principal use provision and therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS. Therefore, classification under the subheading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In determining the principal use of a product, CBP considers a variety of factors including general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979.
Additionally, the Court of Appeals for the Federal Circuit in Primal Lite, 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. “Thus, a classification covering vehicles principally used for automobile racing would cover a race car, even if the particular imported car was actually used solely in an advertising display.” Primal Lite, 182 F.3d at 1364. 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 e.g., HQ 964954, dated, April 18, 2002, and HQ 963032, dated July 24, 2000.
CBP held in HQ 963264 that the instant light sets were classifiable in
subheading 9405.40, HTSUS rather than 9405.30 because they were capable of
indoor and outdoor use. The comment submitted on behalf of Walgreen Co. also claims that outdoor capability excludes string light sets from classification as lighting sets of a kind used with Christmas trees. 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 967408, dated February 9, 2005; HQ 967008, dated June 29, 2004; HQ 966882, dated March 10, 2004; NY N027154, dated May 21, 2008; NY N006432, dated February 22, 2007; 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; NY I82362, dated July 1, 2002; NY 817879, dated December 12, 2000, and NY 887043, dated June 18, 1993.
The lighting sets under reconsideration in the instant case share the physical characteristics as the lighting sets classified as Christmas tree lights in the above opinions: a string of single or multi-colored lights, of varying lengths but long enough to wind around a Christmas tree, and usually featuring (but not limited to) 50-100 light bulbs. They are clearly distinct from the light sets at issue in Primal Lite, which included plastic covers sized to fit over the light bulbs and depicting various objects including fruits, vegetables, hearts, horses, and American flags, none of which had any particular connection to the Christmas season. The instant light sets also clearly differ from lights strands which CBP has recognized as not being of the class or kind of merchandise that is principally used for decorating Christmas trees because of their physical characteristics. See NY J84195, dated June 19, 2003 (light sets consisting of light bulbs in the center of artificial poinsettas); NY I83486, dated August 5, 2002 (lawn-edge net light sets); NY I81176, dated May 20, 2002 (lighting set 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).
Moreover, while the submitted comment alleges that potential safety hazards of using outdoor-rated lights indoors may discourage consumers from such use, the comment also references the Home Depot guide to holiday lighting, which notes that outdoor-rated lights can be used indoors and out, including on Christmas trees. Given
the foregoing, CBP believes that the general expectation of the ultimate purchaser is that these lights are intended for use on Christmas trees.
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.”
As noted in HQ 963264 with regard to items 10-12, “curtain” or “ice” lights and orange lights with Halloween light covers are also not of the class or kind of merchandise that is principally used for decorating Christmas trees. The curtain lights are articles designed for home exteriors in that the long string of lights is affixed horizontally to the roofline and the shorter light strings hang vertically to produce the appearance of hanging icicles. The orange lights with Halloween covers clearly indicate an intended use outside of the Christmas season. These items were thus correctly classified in subheading 9405.40.80, HTSUS.
Items 1 through 9, however, were incorrectly classified as “other electric lamps and lighting fittings” of subheading 9405.40.80, HTSUS. They are properly classified in subheading 9405.30, as “lighting sets of a kind used for Christmas trees.”
HOLDING:
By application of GRI 1and 6, the instant light sets are classified in subheading 9405.30.00, HTSUS, which provides for: “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: Lighting sets of a kind used for Christmas trees.” The 2009 column one, general rate of duty is 8% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
HQ 963264, dated May 4, 2001, is hereby modified with respect to the classification of items 1 through 9.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division