Classification of XTT pathway markers; Chapter 95 Legal Note 1(t); electric garlands

HQ H036400 November 21, 2008 CLA-2 OT:RR:CTF:TCM H036400 JPJ CATEGORY: Classification TARIFF NO.: 9405.40.80; 9817.95.05 Ms. Sidestra Elvi Liss Global, Inc. 7746 Dungan Road Philadelphia, PA 19111 RE: Classification of XTT pathway markers; Chapter 95 Legal Note 1(t); electric garlands Dear Ms. Elvi: This letter is in response to your request, dated June 26, 2008, 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 XTT pathway markers. Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. A sample of each style was forwarded with your request. You have requested that the samples be returned. FACTS: The merchandise is described as two, 8 inch glitter gel pathway markers, Liss Item no. 9002786/Mfg. Item no. 87776RA, with country of origin China. Each is approximately 36 inches in length, and consists of three evenly spaced lighted pathway markers attached to an electrical cord. Each marker consists of a molded plastic framework that supports a plastic sheet printed with representations of characters. The plastic sheet has been cut roughly to the shape of the printed characters. The first pathway marker is based on Disney’s “Winnie the Pooh” (SKU no. 8-55625-87777-9), and depicts the characters of Winnie the Pooh, Tigger and Eeyore. Eeyore is holding a jar with a lid, a red ribbon, and a nametag strung from the ribbon with the name “Eeyore”. On the front of the jar are the words “Don’t open till Xmas”. Winnie the Pooh is wearing a Santa’s hat and is holding a piece of mistletoe over his head. Tigger is wearing a Santa’s hat and is holding a piece of mistletoe over his head with one hand and is pointing to his left cheek with the other hand. The second pathway marker is based on “Frosty the Snowman” (SKU no. 8-55625-87778-6) and depicts three identical snowman characters. The snowman character is dressed in a black top hat that is decorated with a pink and blue flower, a red and gold scarf, and is holding a pipe in one hand. Each character has a crystal-like surface to diffract the light behind it. Plastic clips molded onto the plastic framework hold miniature light bulbs securely in place behind each character. Each marker is designed with stems in their molded plastic frames for insertion into plastic tubes. The plastic tubes are then inserted into plastic stakes, and the plastic stakes are inserted into the earth. When the plastic tubes and stakes are removed from each plastic marker’s frame, each marker may be hung from holes formed into the molded plastic frames. Literature enclosed in the package indicates that the pathway markers may be hung on a tree, tree branches, or bushes. ISSUE: Whether the XTT pathway markers are classifiable as festive articles in heading 9505, HTSUS; as other electric lamps and lighting fittings in heading 9405, HTSUS; or as tableware, kitchenware, or other household articles under heading 3924, 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: 3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: * * * 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: * * * 9817.95.05 Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States * * * Note 1 to Chapter 95, HTSUS, provides, in relevant part: 1. This chapter does not cover: * * * (t) Electric garlands of all kinds (heading 9405) * * * U.S. Note 1 to Chapter 98, HTSUS, provides, in relevant part: The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met. * * * * * * * * 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 and refers them to classification under heading 9405, a determination must first be made whether the pathway markers are classifiable in heading 9405, 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, supra. 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, and NY N024367, dated March 18, 2008. The subject merchandise is capable of being hung on a live tree, tree branches, or on bushes and is 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. SKU no. 8-55625-87777-9, which is based on Disney’s “Winnie the Pooh” is classifiable in heading 9405, HTSUS, however, it also meets the terms of heading 9817.95.05, HTSUS, as it is a three-dimensional representation of symbols that are closely associated with Christmas. See HQ 967237, dated September 9, 2004. They are designed, marketed and sold during Christmas. Christmas is a recognized holiday. See Park B. Smith, Ltd. v. United States, 347 F. 3d 922, 929 (Fed. Cir. 2003). Pursuant to Note 1 to chapter 98, HTSUS, SKU no. 8-55625-87777-9 meets the terms of subheading 9817.95.05, HTSUS, and is classified therein. You have suggested classification in heading 3924, HTSUS. For the reasons stated above, the merchandise is described completely by heading 9405, HTSUS. Thus, we need not consider whether the merchandise is classified as you have proposed. HOLDING: In accordance with GRI I, the lighted pathway marker SKU no. 8-55625-87778-6 is classified in heading 9405, HTSUS. It is specifically provided for in subheading 9405.40.8000, 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 2008 general, column one rate of duty is 3.9%. Pursuant to GRI and U.S. Note 1 to Chapter 98, HTSUS, SKU no. 8-55625-87777-9 is classified in subheading 9817.95.05, HTSUS, which provides for “Articles classifiable in subheadings. . .9405.20, 9405.40 or 9405.50, the foregoing meeting the descriptions set forth below: Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.” The general rate of duty will be Free. 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