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HQ 089867


October 21, 1991

CLA-2 CO:R:C:F 089867 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.4000

Mr. Elias Joseph
ICI Worldwide, Inc.
175 West Bonita Ave
P.O. Box 8
San Dimas, CA 91773

RE: Artificial Foliage Candle Ring Table Decoration with Candles from China; GRI 3(b) "Set"; Festive Article of Heading 9505.

Dear Mr. Joseph:

This is in response to your May 23, 1991 letter requesting the classification of an artificial foliage candle ring table decoration under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was provided for our examination.

FACTS:

The article in question, item HK135410 DATA #40194, is a foliage candle ring table decoration with candles. Described in detail, it consists of one large plastic candle ring with two small plastic candle holders joined to one side. The candle ring houses one candle (3 inches in diameter by 6 inches high), while the plastic candle holders each house an 8 inch taper candle. The subject article is decorated with plastic foliage, holly and pine, gold glitter, plastic red berries, plastic gold balls, red satin balls, and miniature wrapped gifts of styrofoam cubes covered in textile plaid and tied with gold string.

In your letter, you refer to the article in question as a "set." You indicate that each "set" is shipped in a corrugated cardboard box, 36 "sets" to a carton. None of the "sets" is placed in a polybag or otherwise wrapped in plastic before being placed inside the corrugated boxes.

In a telephone conversation with Customs Headquarters, you later indicated that your company operates a mail order business and that the subject article is forwarded to the consumer as is, without repacking.

ISSUE:

Whether the article in question qualifies as a "set" for tariff purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's). The Explanatory Notes to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level and offer guidance in understanding the tariff's various provisions.

GRI 3 governs the classification of goods put up in sets for retail sale. The Explanatory Note to GRI 3(b) indicates that the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking.

Goods which meet these requirements are classified as if they consisted of the material or component which gives them their essential character.

The article in question satisfies the above-mentioned requirements. The article consists of two different components that are classifiable in different headings (the foliage candle ring in heading 9505 and the candles in heading 3406). Likewise, its components are put up together to meet a particular need (that of decoration). The article is put in a manner suitable for sale directly to users without repacking. Based on the facts before us, the table decoration is distributed to purchasers in its condition as imported. As the article qualifies as a GRI 3(b) set, we must now determine whether the foliage candle ring or the candles represents the essential character of the table decoration.

The factor which determines essential character will vary as between different kinds of goods. Generally speaking, however, essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.

Examining the submitted sample, the artificial foliage component makes up the bulk of the article's surface area. Furthermore, when comparing the candles and the artificial foliage, the later is of much greater value. The foliage arrangement is also capable of repetitive use, whereas the candles are spent and must be replaced. As the artificial foliage candle ring component represents the essential character of the subject table decoration, the table decoration is classifiable under the heading which describes the candle ring.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Note to heading 9505 indicates that the 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.

Items classifiable as festive articles in heading 9505 tend to serve no other function than decoration.

The candle ring component in question is both decorative and traditionally associated with the Christmas holiday. Consequently, it is classifiable in heading 9505 as a festive article.

Subheading 9505.10, HTSUSA, provides for articles for Christmas festivities. The candle ring is classifiable within this provision. We must now turn our attention to its proper classification at the eight-digit subheading level.

Subheadings 9505.10.10, 9505.10.15, and 9505.10.25 cover Christmas ornaments of glass, wood, and other, respectively. To qualify as a Christmas ornament, Customs requires that the following three criteria be met:

1. that the item is advertised and sold as a Christmas tree ornament;

2. that there is some method, generally a loop attached to the top, to hang the item on a tree; and

3. that the item is not too big or too heavy to be hung or attached to a tree.

The subject article does not meet the above-mentioned criteria and is not classifiable as a Christmas ornament in subheading 9505.10.25.

Subheading 9505.10.30, HTSUSA, covers nativity scenes and figures thereof. The item at issue is neither a nativity scene nor part thereof. Subheading 9505.10.40, HTSUSA, covers other Christmas articles of plastics. As the candle ring is made of plastics, it is classifiable in subheading 9505.10.40.

HOLDING:

The article in question qualifies as a GRI 3(b) "set" and is classifiable in subheading 9505.10.4000, HTSUSA, which provides for festive, carnival or other entertainment articles; articles for Christmas festivities: other (than Christmas ornaments): of plastics. The rate of duty is 8.4 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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