CLA-2 OT:RR:CTF:TCM H174519 GC
Mr. Paul Anuschat
Import Compliance Consultant
Geo. S. Bush and Co., Inc.
Post Office Box 8829
Portland, Oregon 97208
RE: Classification of lighted candy corn driveway markers
Dear Mr. Anuschat:
This is in response to your letter of May 11, 2011, in which you request a binding ruling on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the “Sienna “3 Candy Corn Driveway Markers” (driveway markers) on behalf of your client, Fred Meyer, Inc. / The Kroger Company. Your ruling request was forwarded by the National Commodity Specialist Division to this office for response. Per your request, the provided sample will be returned to you.
FACTS:
The merchandise consists of three driveway markers, identified by model number #F16G411D, that are connected by approximately thirty-six inches of wire. Each driveway marker features plastic housing in the shape of a candy corn (i.e. triangular shaped plastic housings decorated with three horizontal stripes of yellow, white, and orange) and is approximately seven inches high by four inches wide. One side of two of the driveway markers is decorated with a black jack-o-lantern face. One side of the third driveway marker is decorated with the black text “Trick or Treat”. On the top of each driveway marker is a small hole. A metal loop, which supports the weight of the driveway marker, has been inserted into the top hole of one of the driveway marker samples. Three black plastic stakes are also included.
ISSUE:
Whether the driveway 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:
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
* * *
Note 1(t) to Chapter 95, HTSUS excludes from classification under chapter 95 “[e]lectric garlands of all kinds (heading 9405)”. Note 1(l) to Chapter 94, HTSUS, excludes from classification under chapter 94 “…decorations (other than electric garlands) such as Chinese lanterns (heading 9505)”.
Accordingly, 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".
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. More specifically, CBP has held that pathway markers fit the definition of “electric garlands” of heading 9405, HTSUS. See HQ H068435, dated October 16, 2009 (two styles of lighted snowflake pathway markers connected by an electrical string) 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).
The subject driveway markers are substantially similar to the pathway markers subject to HQ H068435 and HQ H036400. The instant driveway 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 driveway 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 is classified under heading 9405, HTSUS.
We note that 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 HQ 962309, dated September 30, 1999, and HQ 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, the U.S. Customs Service (now CBP) 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 1, the instant “Sienna “3 Candy Corn Driveway Markers” are classified in heading 9405, HTSUS. They are specifically provided for in subheading 9405.40.80, HTSUS as: "[l]amps 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 general, column one rate of duty is 3.9 percent ad valorem.
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,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch