CLA-2 OT:RR:CTF:TCM H068435 JPJ
Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
Counselors at Law
399 Park Avenue, 25th Floor
New York, New York 10022-4877
RE: Classification of snowflake pathway markers; Chapter 95, Legal Note 1(t); electric garlands
Dear Mr. Murphy:
This letter is in response to your letter, dated June 18, 2009, wherein you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two items described as snowflake pathway markers (pathway markers). Your request, along with the photographs of the merchandise and the packaging, was forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. We have also considered your arguments made in a telephone conference with a member of my staff on August 28, 2009, your letter dated August 25, 2009, and an email dated August 28, 2009. We have also reviewed the samples you submitted.
FACTS:
The merchandise is described as two lighted snowflake pathway markers in both LED (Style DHT18) and incandescent (Style 91055) styles. The LED style pathway marker consists of 4 snowflakes connected by an electrical string measuring 7.5 feet. Each individual snowflake consists of 12 LED lights illuminating at 4.8 watts. The clear plastic frame of each snowflake contains a plastic tube into which a plastic lawn stake may be inserted. The plastic tubes on
the LED style are not designed to be removed. When the lawn stakes are not used, the snowflake pathway markers may be hung on a house, on trees, and on shrubs. The product packaging for the LED style pathway marker states as follows: “[a] festive array of lights [that] beautifully illuminates your house, trees and shrubs while increasing your home’s security during the holidays”. It also states “Connect Up To 210 Watts Or 43 Sets Of This Exact Light String on 1 Outlet.”
The incandescent style pathway marker consists of 4 holographic snowflakes connected by an electrical string measuring 6 feet. Each individual snowflake consists of 20 incandescent lights, illuminating at 40.8 watts. When the lawn stakes are not used, the snowflake pathway markers may be hung on trees, on shrubs, and on fences. The product packaging for the incandescent style pathway marker states: “[a]dorn your fence with scallops of lights. Using three strands at a time, swag the lights at different lengths to form a pattern.”
The product Instruction Manuals, specifically the Use and Care Instructions, included with both styles of pathway markers, state the following:
a) When the product is placed on a live tree, the tree should be well maintained and fresh. Do not place on live trees in which the needles are brown or break off easily. Keep the tree holder filled with water.
b) If the product is placed on a tree, the tree should be well secured and stable.
. . .
d) When storing the product, carefully remove the product from wherever it is placed, including trees, branches or bushes, to avoid any undue strain or stress on the product conductors, connections, and wires.
The merchandise is designed for indoor and outdoor use.
ISSUE:
Whether the pathway markers are classifiable as festive articles in heading 9505, HTSUS, or as other electric lamps and lighting fittings in heading 9405, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). GRI 1 provides that the classification of goods shall be determined 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 GRIs may then be applied.
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:
9405.40 Other electric lamps and lighting fittings:
9405.40.80 Other
* * *
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:
Other:
9505.10.50 Other
* * *
Note 1 to Chapter 95, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(t) Electric garlands of all kinds (heading 9405)
* * *
Note 1(l) to Chapter 94, HTSUS, provides in relevant part:
This chapter does not cover:
(l) …decorations (other than electric garlands) such as Chinese lanterns (heading 9505).
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide 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. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The ENs to heading 9405, provide, in relevant part:
This heading covers in particular:
* * *
(3) Specialised lamps, e.g.: . . . electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees).
* * *
The ENs to heading 9505, provide, in relevant part:
This 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.
(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....
* * *
* * * * *
This heading also excludes:
(f) Electric garlands of all kinds (heading 94.05)
* * * * *
Insofar as Chapter 95, Note 1(t), excludes “electric garlands of all kinds” from heading 9505, HTSUS, and refers them to classification under heading 9405, HTSUS, a determination must first be made whether the pathway markers are classifiable in heading 9405, HTSUS.
Heading 9405, HTSUS, provides, in relevant part, for “Lamps”. The term “lamps” is not defined in the HTSUS. In Headquarters Ruling letter (HQ) 954845, dated May 26, 1994, CBP employed the use of the dictionary definitions of lamps. See also HQ H042586, dated January 26, 2009. In HQ 954845, we noted:
"Lamp" is defined in The Random House College Dictionary, Random House, Inc. (1973), at 752, as "a device providing an isolated source of artificial light". Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1979), at 639, defines "lamp" as "any of various devices for producing light or heat".
You argue that the pathway markers are not lamps of heading 9405, HTSUS, because they utilize light purely for their decorative effect. You conclude that articles that furnish illumination to the articles themselves, without any substantial capacity for illuminating the surrounding area, are not illuminating articles and are not lamps within the common meaning of the term. In support thereof, you cite NY N052043, dated March 16, 2009; and NY N022853, dated February 18, 2008.
NY N052043 involved the classification of three articles: a tea light holder with frosted amber glass; a tea light holder with clear crackle glass; and a mosaic votive holder. The mosaic votive holder was classified as decorative glassware under heading 7013, HTSUS, because it did not have any design features to identify it as a lamp or lighting fitting. Unlike the mosaic votive holder of NY N052043, the pathway markers incorporate LED and incandescent lights and produce light. Therefore, we conclude that NY N052043 does not support your argument that the pathway markers are classifiable as decorative articles similar to Chinese lanterns, in heading 9505, HTSUS.
In NY N022853 we classified an item described as a mini volcano lamp, which incorporated a red LED light to illuminate a volcano structure and an electric pump to simulate an erupting volcano, under heading 8543, HTSUS. You argue that, like the mini volcano lamp of NY N022853, the pathway markers are also not lamps. However, also unlike the pathway markers, the mini volcano lamp incorporated a series of electric pumps, and was classified in the provision for “[e]lectrical machine and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: . . .”. The mini volcano lamp was not classified as a decorative article. Therefore, we conclude that NY N022853 does not support your argument that the pathway markers are classifiable as decorative articles similar to Chinese lanterns, in heading 9505, HTSUS.
In HQ 963311, dated October 19, 2000, CBP cited Webster’s 3rd New International Dictionary of the English Language (unabridged;1993), to define “garland” as “a wreath or festoon of leaves or flowers to be worn on the head or used to decorate an object.” Based on this definition, CBP determined that “[a]n article is an electric garland if it [is] able to be hung or displayed and is composed of a string of light bulbs which are powered by an electrical source either attached by a power cord, battery or plug.” See HQ 963311. See also HQ 966104, dated May 27, 2003; NY N010295, dated May 7, 2007; NY N011796, dated June 7, 2007; NY N013025, dated June 27, 2007; NY N015171, dated August 17, 2007; NY N019069, dated November 16, 2007; NY N023764, dated March 5, 2008; NY N023766, dated March 5, 2008; NY N024367, dated March 18, 2008; and HQ H036400, dated November 21, 2008 (“Frosty the Snowman” glitter gel pathway marker consisting of three evenly spaced lighted snowman characters attached to an electrical cord and capable of being hung on a live tree, tree branches, or on bushes classified in heading 9405, HTSUS).
You argue that both styles of pathway markers are unlike the merchandise at issue in HQ H036400. You state that, unlike the design features of the merchandise at issue in that ruling, the pathway markers at issue herein do not have “holes formed in the molded plastic frames” that would allow them to be properly hung. Despite the product packaging on both pathway marker styles, you also argue that the general decorating tips on the packaging merely show a general marketing package marking scheme and do not in any way indicate the use of the pathway markers. Other than to argue that the general decorating tips refer to some items pictured on the packaging, and not to others, you do not provide any evidence to support your conclusion. Finally, you argue that the instructions for hanging and displaying the pathway markers found at Underwriters Laboratories (UL) 588 (Seasonal and Holiday Decorative Products) are required by UL on every seasonal lighting article, including large steel frame deer light displays. As such, you argue that these instructions do not demonstrate that these goods are designed, marketed, or sold for use as garland. However, we note that these instructions clearly indicate that the merchandise may be hung or displayed on trees, branches, or bushes, and you provide no evidence to the contrary.
Therefore, we find that both styles of pathway markers are capable of being hung or displayed and are composed of a string of light bulbs which are powered by an electrical source attached by a power cord. Consequently, the pathway markers meet the definition of garland as set forth in HQ 963311, supra. Pursuant to chapter 95, Note 1(t), the merchandise is excluded from heading 9505, HTSUS, and must be classified under heading 9405, HTSUS. We also note that the EN's to heading 9405, HTSUS, 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.
Since the pathway markers at issue are electric garlands, classification in heading 9505 as a "festive article” is precluded by legal Note 1(t) to Chapter 95, HTSUS, which directs classification in heading 9405, HTSUS at GRI 1. Therefore, your suggestion that a GRI 3 analysis is necessary is unfounded.
We also do not need to address the Carborundum evidence you have provided, as the Carborundum case does not overrule the legal requirement that electric garlands are excluded from classification as "festive articles" under heading 9505, HTSUS. See United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976). Likewise, and while you cite to the court’s decision in Midwest, we also note that the Midwest decision did not overrule section and chapter Notes exclusions. See Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997). Furthermore, the Midwest court did not validate or void any Explanatory Note of Heading 9505 or find them to be at cross-purposes with the statutory language of the headings or subheadings.
Because electric garlands cannot be classified in Chapter 95 based on Chapter 95, Note 1(t), we also do not need to address your argument that the merchandise allegedly meets the "class or kind" criteria for festive merchandise under the two-part test for utilitarian articles incorporating festive motifs established by the court in Park B. Smith. See Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), aff’d in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004).
We note that decorative lighting is provided for in heading 9405, HTSUS. In HQ 962309, dated September 30, 1999, and HQ 962901, dated September 28, 1999, describe a lighting cord set of a kind used for Christmas trees as one particular type of article of decorative lighting provided for in heading 9405, HTSUS, (subheading 9405.30.00, HTSUS). Further, lighting cordsets, e.g., electric garlands, which are not intended for Christmas trees also fall within this heading, in subheading 9405.40.80, HTSUS. See HQs 962309, dated September 30, 1999, and 962901, dated September 28, 1999, citing Primal Lite, Inc. v. United States, 15 F. Supp. 2d 915, 22 CIT 697 (1998), aff’d, 182 F. 3d 1362 (Fed. Cir. 1999). In those cases, Customs relied upon the Court of Appeals for the Federal Circuit’s decision in Primal Lite, which held that “strands of electric lights that are packaged with decorative plastic covers depicting various objects, including fruit, vegetables, American flags, rearing horses, and guitars, are classified under subheading 9405.40.80, HTSUS,” under the residual subheading for “other electric lamps and lighting fittings.”
HOLDING:
In accordance with GRI I, the snowflake pathway markers, LED style DHT18 and incandescent style 91055, are classified in heading 9405, HTSUS. They are specifically provided for in subheading 9405.40.80, HTSUS as: "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: Other electric lamps and lighting fittings:; Other”. The 2009 general, column one rate of duty is 3.9%.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch