Plastic miniature "pumpkin head" light covers for use with an electric garland; Heading 3926; other articles of plastic

HQ 962067 September 22, 1999 CLA-2 RR:CR:GC 962067 JRS CATEGORY: Classification TARIFF NO.: 3926.40.00 Ms. Kimberly Fathauer A.W. Fenton 1157 Rarig Avenue Columbus, OH 43219-2357 RE: Plastic miniature "pumpkin head" light covers for use with an electric garland; Heading 3926; other articles of plastic Dear Ms. Fathauer: This is in response to your letter of June 17, 1998, on behalf of Consolidated Stores Corp., to the Director, Customs National Commodity Specialist Division, New York, requesting a ruling on the proper tariff classification of 20 mini "pumpkin head" light covers under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and the submitted sample were forwarded to this office for a direct response. We regret the delay. FACTS: Item #5560 is a plastic bag containing 20 miniature plastic "pumpkin head" light covers made in China. The light covers, which are in the shape of jack-o’-lantern pumpkins, measure approximately 1¼ inches in width, 1¼ inches in height and 1 inch in diameter. The package is attached to a cardboard "header" card, displaying the following printed advertising information: "[s]nap on pumpkin head, fits most miniature lite sets, great for trees, windows, bannisters and wreaths." The packaged light covers are not imported with an electric garland. ISSUE: Whether the 20 miniature plastic light covers in the shape of jack-o’-lantern pumpkins are classifiable in heading 9505, HTSUS, as festive articles, or under heading 3926, HTSUS, as articles of plastic. LAW AND ANALYSIS: Classification under the HTSUS 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 GRIs may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. You argue that the plastic light covers are accessory items of a festive article of Chapter 95, HTSUS, and in support thereof, provide Carborundum evidence [i.e., United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976)] to meet the "class or kind" criteria for festive merchandise. Note 1(t) to Chapter 95, HTSUS, states that "[t]his chapter does not cover: [e]lectric garlands of all kinds (heading 9405)." See EN 95.05 (B)(f), which excludes "[e]lectric garlands of all kinds" from heading 9505; see also Primal Lite, Inc. v. United States, Slip Op. 98-1562, 1999 U.S. App. LEXIS 16014 (July 16, 1999) aff’g, 15 F. Supp. 2d 915, 22 CIT ___ (1998), a recent court case which classifies electric lighting sets with decorative plastic covers under subheading 9405.40.80, HTSUS, the residual provision for "other electric lamps and lighting fittings." Note 1(l) to Chapter 94, HTSUS, states that "[t]his chapter does not cover: ... decorations (other than electric garlands) such as Chinese lanterns (heading 9505)." EN 94.05 I. (3), provides that this heading covers "...electric garlands (including those fitted with fancy lamps for carnival or entertainment purposes or for decorating Christmas trees)." As electric garlands cannot be classified in Chapter 95 based on Chapter Note 1(t), it follows that parts of or accessories to an electric garland, such as light covers, cannot be classified in Chapter 95. When light covers are imported with an electric garland, the entire article is classified under subheading 9405.40.80, HTSUS. See Primal Lite, supra. The 20 light covers, however, are packaged and imported without an electric wire harness. The plastic light covers cannot be considered decorative articles in their own right since their use is to accessorize an electric garland, an item excluded from classification in heading 9505. The Carborundum evidence provided does not eliminate the legal requirement that electric string lights (i.e., electric garlands) are excluded from classification as a "festive article" within heading 9505. Since the plastic pumpkin light covers cannot be used except as part of an excluded item, the light covers are not festive articles of heading 9505. Moreover, because there is no parts or accessories provision in heading 9405, the plastic light covers cannot qualify as parts or accessories to an electric garland, an article classifiable within heading 9405. As a result, the plastic light covers are excluded from classification in Chapter 94 as well. Heading 3926 provides for other articles of plastics or materials of headings 3901 to 3914. Because the plastic pumpkin head light covers are ornamental, they are classifiable in subheading 3926.40.00, HTSUS. HOLDING: The 20 plastic "pumpkin head" light covers are classifiable in subheading 3926.40.00, HTSUS, as "[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." Sincerely, John Durant, Director Commercial Rulings Division