CLA-2 OT:RR:CTF:TCM H070673 TNA
Michelle Angelina
Expediters International of Washington, Inc.
870 Ashland Avenue
Folcroft, PA 19032
RE: Revocation of NY I88935; Classification of an electric Halloween light set from China
Dear Ms. Angelina:
This letter is in reference to New York Ruling Letter (“NY”) I88935, issued to Expediters International of Washington (“Expediters International”) on December 9, 2002, concerning the tariff classification of an electric Halloween light set from China. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under subheading 9405.40.8000, Harmonized Tariff Schedule of the United States (“HTSUS”), as other electric lamps and lighting fittings: of base metal. We have reviewed NY I88935 and found it to be in error. For the reasons set forth below, we hereby revoke NY I88935.
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 revoke NY N018967 was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin. CBP received two comments in response to this notice, which are addressed in the ruling.
FACTS:
The merchandise at issue is an electric light set called “Pumpkin-Colored Halloweenies.” It consists of an electric black wire harness that measures about 20 feet in length and incorporates 80 miniature orange light bulbs and an eight-function control box.
In NY I88935, CBP classified the light sets under subheading 9405.40.8000, HTSUS, as: “other electric lamps and lighting fittings: of base metal: other.”
ISSUE:
Whether the “Pumpkin-Colored Halloweenies” are classified under heading 9405.40.80, HTSUS, as “other electric lamps,” or under heading 9405.30, HTSUS, as “lighting sets of a kind used for Christmas trees”?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
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:
9405.30.00 Lighting sets of a kind used for Christmas trees
9405.40 Other electric lamps and lighting fittings:
Of base metal:
9405.40.80 Other
In examining the competing subheadings within heading 9405, HTSUS, we note that subheading 9405.30.00, HTSUS, is a “principal use” provision within the meaning ascribed in Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (Fed. Cir. 1999). In Primal Lite, the court concluded that because subheading 9405.30.00, HTSUS, is a principal use provision, it is therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS, which states as follows:
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.
The merchandise at issue in Primal Lite consisted of 14-foot long lengths of wire set with 10 light bulbs and with two extra light bulbs attached. Plastic shapes in the form of objects such as fruits, vegetables, hearts, rearing horses, guitars and American flags were included to be fitted over the lights. CBP originally classified the merchandise in subheading 9405.30, HTSUS, but the court sided with the plaintiff, classifying it in subheading 9405.40, HTSUS. See Primal Lite, 15 F. Supp. 2d 915, 916.
Additionally, the Primal Lite court, 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 recognized as part of that class or kind. 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, HQ 963264, dated May 4, 2001, HQ 963032, dated July 24, 2000, and HQ 083885, dated July 18, 1989. Therefore, to classify the subject merchandise, it is necessary to determine whether it belongs to the class or kind of goods that are recognized as being principally used for the decoration of Christmas trees or for other purposes not necessarily relating to Christmas trees.
Courts have provided several factors to apply when determining whether merchandise falls within a particular class or kind of good. They include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g. the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976).
In NY I88935, CBP classified the subject merchandise under subheading 9405.40.80, HTSUS. Upon reconsideration, however, CBP notes first that the subject merchandise, although it is called a “Halloween light set,” is distinguishable from the merchandise at issue in Primal Lite. There, the lights sets came with plastic coverings in the shape of various figures such as fruits, vegetables, hearts, rearing horses, guitars and American flags, and was classified under subheading 9405.40.80, HTSUS. Primal Lite, 22 C.I.T. 697. CBP rulings that have followed Primal Lite in classifying light sets under subheading 9405.40.80, HTSUS, have done so where the merchandise contains both light sets and similar plastic figures in shapes such as ghosts and jack-o-lanterns. See, e.g., HQ 962770, dated September 24, 1999; NY N025581, dated April 25, 2008.
In the present case, by contrast, the subject merchandise lacks the plastic shapes that characterized the merchandise in Primal Lite. Instead, it has an electrical black wire harness that is 20 feet long and incorporates 80 orange miniature light bulbs. There is nothing to distinguish it from the types of lights that are used on Christmas trees, or the other light sets that CBP has classified under subheading 9405.30, HTSUS. Orange lights, in themselves, are not exclusive to Halloween, and consumers can use light sets such as the subject merchandise as decoration during the Christmas season. Although CBP recognizes that many consumers may purchase these lights for use on objects other than Christmas trees, such as hanging them outdoors or in a living room, the subject merchandise’s long wire harness and shaped bulbs means that it is of the same type of lights as are hung on Christmas trees. We note that substantially similar merchandise has repeatedly been classified under subheading 9405.30.00, HTSUS. See, e.g., HQ 966882, dated March 10, 2004; HQ 966962, dated February 9, 2005; HQ 967008, dated June 29, 2004; HQ 967408, dated February 9, 2005; NY J89048, dated November 7, 2003; NY J83867, dated May 7, 2003, NY I85459, dated September 12, 2002; NY I83664, dated July 17, 2002; NY I82126, dated July 1, 2002; NY I83133, dated July 10, 2002; and NY N027262, dated May 20, 2008. The subject merchandise consists of wire and lights in the same shape and configuration as the light sets classified in these rulings. As a result, CBP finds that the Pumpkin-Colored Halloweenies are classified under subheading 9405.30.00, HTSUS.
CBP received two comments opposing the proposed revocation, both of which advanced the same arguments. These comments argue that the subject merchandise’s black wire harness makes it inappropriate for Christmas trees because the black cord would be a glaring contrast to the tree’s green foliage. Furthermore, the comments argue that the black, orange and purple lights are closely associated with Halloween and are therefore inappropriate for use on a Christmas tree. The comments also note that the stores that sell the subject light sets only do so at Halloween, and that all of these factors contribute to consumer expectations that the subject light sets would not be used on a Christmas tree. As a result, the comments argue that the subject light sets are not commercially fungible with the types of light sets that are of the kind used on Christmas trees, when commercial fungibility is an important standard promulgated by Primal Lite and subsequent CBP rulings.
In response, we note that while green Christmas trees are certainly traditional, trees in other colors, including black, have been increasing in popularity. Traditional strings of lights that are generally accepted as lights of the kind used on Christmas trees are manufactured with different color wire harnesses so as to fit in with different color trees, such as white harnesses to blend in with white or chrome trees. Increasingly, strings of lights that are being marketed and sold as Christmas lights are being produced with black wires. In addition, customer reviews of black Christmas trees indicate that that such trees allowed them to continue using the string lights they had purchased during Halloween with their Christmas trees. See, e.g., http://www.treetopia. com/Colorful-Christmas-Trees-s/23.htm; http://www.christmasdepot.com/search/black+ wire. Furthermore, we believe that even with a traditional green Christmas tree, the black wire of the subject merchandise would be largely hidden among the tree’s branches. As a result, we find that the subject light sets are in fact commercially fungible with light sets sold during the Christmas season. As a whole, the subject light sets are of a kind used on Christmas trees, and they are therefore classified in subheading 9405.30.00, HTSUS.
HOLDING:
Under the authority of GRI 1, the light set from China is classified in subheading 9405.30.00, HTSUS. The applicable duty rate is 8% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY I88935, dated December 9, 2002, is REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division