CLA-2 OT:RR:CTF:TCM H179479 CkG
TARIFF NO: 9405.30.00
Port Director
U.S. Customs and Border Protection
Port of Savannah
1 East Bay Street Savannah, GA 31401
Re: Application for Further Review of Protest No. 1703-2010-100568; classification of LED Christmas tree light sets
ATTN: Jason Todd, Import Specialist
Dear Port Director,
This is in reply to the Application for Further Review of Protest No. 1703-2010-100568, filed on December 21, 2010 on behalf of Sears Holding Management Corp., contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of LED Christmas tree string light sets in heading 9405, HTSUS, as lamps.
FACTS:
The lighting sets at issue are described as a miniature series bulb Christmas tree light set, part nos. 160718188113, 160718189111, 160668197114, 160668198112, 160161600119, 160560305112, 160560295115, 160434729802. The light sets utilize LED bulbs.
The subject merchandise was entered between July 31, 2009, and September 05, 2009, in heading 9405, HTSUS. The merchandise was liquidated by the Port of Savannah between June 25, 2010 and July 16, 2010, in heading 9405, HTSUS, which provides for “lamps and lighting fittings including searchlights and spotlights…not elsewhere specified or included.” Protestant claims in its Application for Further Review that the merchandise is correctly classified in heading 8543, HTSUS, which provides for “electrical machines and apparatus having individual functions, not specified or included elsewhere in this chapter.”
ISSUE:
Whether the string lights are classified in heading 9405, HTSUS, as lamps, or in heading 8543, HTSUS, as electrical machines or apparatus having an individual function.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1703-2010 -100568 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts, specifically whether LED string light sets of a kind used for Christmas trees are classified as electrical machines and apparatus of heading 8543, HTSUS.
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8543: Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof
8543.70: Other machines and apparatus:
8543.70.70: Electric luminescent lamps
* * * * *
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
* * * * *
Note 1(f) to Chapter 94 provides, in relevant part:
This chapter does not cover:
(f) Lamps or lighting fittings of chapter 85;
* * * * *
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 85.43 provides, in pertinent part, as follows:
This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter.
* * * * *
EN 94.05 provides, in pertinent part:
Lamps and lighting fittings of this group can be constituted of any material (excluding those materials described in Note 1 to Chapter 71) and use any source of light (candles, oil, petrol, paraffin (or kerosene), gas, acetylene, electricity, etc.). Electrical lamps and lighting fittings of this heading may be equipped with lamp holders, switches, flex and plugs, transformers, etc., or, as in the case of fluorescent strip fixtures, a starter or a ballast.
This heading covers in particular :
…
(3) Specialised lamps, e.g. : darkroom lamps; machine lamps (presented separately); photographic studio lamps; inspection lamps (other than those of heading 85.12); non flashing beacons for aerodromes; shop window lamps; electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees).
* * * * *
Protestant contends that the instant lighting sets are classified in heading 8543,
HTSUS, because they are specifically provided for in that heading, and because of note 1(f) to Chapter 94, which excludes lamps of Chapter 85 from that heading.
Heading 8543, HTSUS, provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.” EN 85.43 also notes that heading 8543 only covers electrical appliances not more specifically covered elsewhere in the tariff, as opposed to elsewhere in the Chapter (as noted in the heading text). Heading 9405, HTSUS, provides, in pertinent part, for “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included.” Note 1(f) to Chapter 94 excludes “lamps and lighting fittings of Chapter 85” from Chapter 94.
Protestant argues that the instant lights are articles of heading 8543, HTSUS, and are thus excluded from Chapter 94 by Note 1(f). Heading 8543, HTSUS, provides in relevant part for: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.” The instant product is an “electrical apparatus” and it has an individual function within the meaning of heading 8543, HTSUS. The definition of “individual functions” is contained in the EN to Heading 8479, which provides that the following are to be regarded as having “individual functions”: “Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.” In the instant case, the lighting set is a completely functional, self-contained unit and does not need to be mounted onto another device in order to perform its function—i.e., the generation of light. The instant light sets are therefore electric apparatus having an individual function, as is any electric lamp. However, the instant light sets do not meet the terms of EN 85.43 because they are already specifically provided for in heading 9405. Heading 9405 provides for a wide variety of electric lamps and lighting fittings, including lighting sets of a kind used on Christmas trees. As noted by the protestant, the instant light sets meet the definition of a “lamp” because they provide an isolated source of artificial light, pursuant to the definition of “lamp” adopted in HQ 954845, dated May 26, 1994, and HQ H042586, dated January 26, 2009. It is also undisputed that the instant light sets are of a kind used on Christmas trees, and that such lights are specifically mentioned in the EN to 9405. The subject string lights are therefore provided for in that heading which specifically covers lamps and lighting fittings, including those for decorating Christmas trees (i.e., heading 9405, HTSUS).
Furthermore, the instant string lights are not subject to Note 1(f) to Chapter 94 because they are not lamps or lighting fittings of Chapter 85 within the meaning of the Note. The Protestant suggests that any electric lamp with an individual function is an article of heading 8543 and must therefore be excluded from heading 9405. However, such a conclusion would render heading 9405 virtually meaningless and would be in clear opposition to the text and ENs of heading 9405. Protestant’s interpretation of Note 1(f) as mandating the exclusion of any and all electric lamps from heading 9405 is therefore incorrect. Note 1(f) to Chapter 94 excludes “lamps and lighting fittings of Chapter 85” and not “articles of Chapter 85”. This choice of language is important. The legal text clarifies that headings 85.13 and 85.39, both of which are headings within Chapter 85 which specifically provide for lamps, take precedence over any heading in Chapter 94. There is no lamp provision in Chapter 85 that describes the instant LED light sets. Importantly, heading 85.43 does not provide for lamps at all. Furthermore, the ENs to heading 9405 provide a clear picture of the scope of the exclusionary note: the ENs exclude “Electrical lighting and signalling equipment for cycles and motor vehicles (heading 85.12),” and “Electric filament lamps, discharge lamps (including tubes in various complex forms such as scrolls, letters, figures, stars, etc.) and arc lamps (heading 85.39)” from Chapter 94. Note 1(f) to Chapter 94 must therefore be read to exclude lamps of Chapter 85 that are classified under a lamp or lighting provision of Chapter 85, that is, headings 85.12, 85.13 and 85.39 from Chapter 94. This is consistent with the text of the Nomenclature, the ENs, and the history of the adoption of heading 94.05 and Note 1(f) to Chapter 94. Hence, the instant string lights are not lamps or lighting fittings of Chapter 85 and are not subject to Note 1(f).
The string light sets are thus not excluded from heading 9405 by Note 1(f) to Chapter 94. The string lights are included, and more specifically described, at the four-digit level in heading 9405, HTSUS, as lamps.
In support of its argument that the instant Christmas tree lights are classified as electric apparatus of heading 8543, HTSUS, Protestant also notes that electric luminescent lamps are specifically included in subheading 8543.70.70, HTSUS, which provides for “Electroluminescent devices”. We do not dispute that “Electroluminescent devices” may also be lamps. However, this argument ignores the fact that the GRIs require that classification at the four-digit heading level be considered first, and that any relevant subheadings can only be considered after classification at the four-digit level is established. Furthermore, only subheadings within the same heading can be compared directly. The relative specificity of subheadings in different headings or Chapters cannot be considered.
However, to the extent that subheadings confirm the analysis used to classify a good at the 4-digit level, we note that string lights for Christmas trees are classified in heading 9405, HTSUS, specifically in subheading 9405.30.00, HTSUS, as “lighting sets of a kind used for Christmas trees.” EN 94.05 also specifically notes that electric garlands used for decorating Christmas trees are included in heading 9405, HTSUS. Neither EN 85.43 nor any of the subheadings in heading 8543, HTSUS, provide specifically for lamps or lighting sets at all, much less lighting sets for use on Christmas trees.
We further note that the classification of virtually identical merchandise has been extensively addressed. Both CBP and the Court of International Trade have classified conventional lighting sets of a kind used for Christmas trees in heading 9405, HTSUS, specifically subheading 9405.30.00. See e.g., Primal Lite, Inc. v. United States, 15 F.Supp. 2d 915 (Ct. Int’l Trade 1998), aff’d 182 F.3d 1362 (CAFC 1999); HQ H066795, dated March 30, 2010; HQ 967408, dated February 9, 2005; HQ 967008, dated June 29, 2004; and HQ 966882, dated March 10, 2004. CBP has also consistently classified LED Christmas tree light sets in heading 9405, HTSUS. See NY N235087, dated November 21, 2012; NY N219056, dated June 14, 2012; NY N217875, dated June 13, 2012; NY N215825, dated May 16, 2012; NY N213523, dated April 24, 2012; NY N178815, dated August 17, 2011; NY N175672, dated August 4, 2011; NY N172576, dated July 5, 2011; NY N053578, dated March 20, 2009; NY N053582, dated March 20, 2009; NY N027154, dated May 21, 2008; NY N009018, dated April 5, 2007; NY N022915, dated February 25, 2008; NY N009305, dated April 10, 2007; NY M83116, dated May 22, 2006; NY R03207, dated February 21, 2006. Of course, LED or not, all such lights are electrical apparatus having an individual function. Heretofore, none have been classified in heading 8543, because they are more specifically provided for in heading 9405.
LED lamps and lighting sets not of a kind used on Christmas trees have also been consistently classified in heading 9405, HTSUS. See e.g., HQ H068435, dated October 16, 2009; HQ 966952, dated August 18, 2004; HQ 966217, dated January 14, 2004; HQ 962901, dated September 28, 2001; NY N249663 February 21, 2014 (LED); NY N248727, dated January 7, 2014; NY N247350, dated November 18, 2013; NY N245779, dated September 19, 2013; NY N244850, dated September 3, 2013; NY N244807, dated August 30, 2013; NY N173775, dated July 15, 2011; NY N175717 July 29, 2011; NY N173599, dated July 13, 2011; NY N159435, dated April 15, 2011; NY N107618, dated June 18, 2010; NY N067457, dated July 15, 2009; NY N045395, dated December 4, 2008; NY L83707, dated April 14, 2005; NY K81620, dated December 19, 2003; NY I83192, dated July 3, 2002. CBP has also addressed the classification of LED lights in heading 8543 versus heading 9405 in prior rulings, noting that LED lamps and light sets are specifically provided for under heading 9405, HTSUS. See e.g., HQ H042586, dated January 26, 2009; HQ 965248, dated July 26, 2002; NY N175717, dated July 29, 2011 (LED); NY N169158, dated June 24, 2011; NY N062676, dated June 16, 2009; and NY N062455, dated June 16, 2009.
In contrast, individual LED bulbs are classified in heading 8543. See HQ H135615, dated February 12, 2014. Although the product at issue in HQ H135615 was described as a lamp, we concluded that it was not a lamp within the meaning of heading 9405, HTSUS, because it cannot, by itself, produce light. Heading 9405 covers complete lamps—including not only the bulb and casing, but the fittings and fixtures which supply the necessary power—as well as the fittings and fixtures imported separately. Thus, an LED bulb by itself is currently classified in heading 8543; when affixed to a power source, as in the instant case, it becomes a lamp or lighting fitting of heading 9405.
Lastly, 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.
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).
Each of the subject light sets is designed to be used at Christmas. They have green wire that is many feet long and contain many multicolored bulbs. The long wire harness and shaped bulbs indicate that the instant light sets are of the same type of lights as are hung on Christmas trees. Furthermore, they are variously described on the commercial invoice, Entry Summary (CBP form 7501), and by the manufacturer, General Electric, as “Miniature Series Bulb Christmas Tree Light Set”, “Miniature Wired Sets: X-Mas”, and “holiday string lights sets.”
In sum, because the instant string light sets are more specifically described by heading 9405, HTSUS, they cannot be included in heading 8543, HTSUS. Because they are not lamps of Chapter 85, Note 1(f) to Chapter 94 does not apply. Additionally, because the string lights belong to the class or kind of lighting sets used for Christmas trees, they are specifically classified in subheading 9405.30.00, HTSUS.
HOLDING:
By application of GRI 1, the instant light sets are classified in heading 9405, HTSUS, specifically 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 2010 column one, general rate of duty is 8% ad valorem.
You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel and to the public, online at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division