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HQ 958535




December 4, 1995

CLA-2 RR:TC:FC 958535 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.0000

Stephen S. Spraitzar, Esq.
Law Office of George R. Tuttle
3 Embarcadero Center
Suite 1160
San Francisco, CA 94111

RE: Poured Candles in Decorated Metals Tins

Dear Mr. Spraitzar:

This is in reference to your letters of September 28, 1995 and October 12, 1995, requesting a ruling as to the subject merchandise imported from the Peoples Republic of China (PRC). Several samples of the merchandise and small shopping bags which contain the same decorative motif, but are not the subject of your ruling request, where provided with your request.

FACTS:

The merchandise under consideration is plain white candles poured into small round tin containers with lids. The containers are approximately 3 1/2 inches in diameter and 2 inches high and are made to be sold at the retail level. The tins and lids are either red or green in color and are decorated with cherubs (angels). The design is from transparencies of certain famous paintings housed in museums. The candle containing tins are, as imported, packaged in a quantity of 12 in a red display box, with a pop-up lid, which is imprinted with the words "Holiday Time" in 1/2 inch letters and "Candle Tins" in 1 and 1/4 inch letters. The pop-up lid also contains a reproduction of a gold wreath approximately 1 and 5/8 inches in diameter. Counsel indicates that the imported merchandise should be considered to be Christmas candles because of the color and design of the tins and the display packages. In this regard counsel also notes that the merchandise is only sold by the retailer for the Christmas season - 2 -
and the inventory thereof is liquidated by the retailer immediately after the Christmas season. Counsel further indicates that the candles should not be subject to the antidumping order covering petroleum wax candles from the PRC because they are outside the scope of the order published in the Federal Register of August 28, 1986 (51 FR 30686).

ISSUE:

What is the classification of the instant candles and are they exempt from the antidumping order because they depict a holiday or special event?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The article under consideration is composed of petroleum wax candles poured into metal tins which contain a lid. The candle can not be removed from the tin and may only be used by lighting the wick. Since the candle and the tin, if imported separately, would be classifiable in different headings, the imported article cannot be classified on the basis of GRI 1. In accordance with GRI 2(b), the classification of goods consisting of more than one material or substance are to be classified accorded to the principles of GRI 3. Since the available headings cover only a portion of the imported product, we cannot rely of GRI 3(a) and must refer to GRI 3(b) which provides:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Since the petroleum wax composing the candle cannot be removed from the tin without the candle being used up, we do not believe that the tin containers are separate commercial entities at the time of importation and are not separately classifiable under the provisions of GRI 5(a).

It, therefore, is necessary to ascertain the essential character of this composite product put up for retail sale pursuant to GRI 3(b). The Explanatory Notes to the Harmonized System relative to that GRI, which represents the view of the international classification experts, provides the factors which might be considered in reaching a conclusion as to the essential character of a product. It provides for consideration of facts such as bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

While we do not have any figures as to the value of each of the components of the product, we believe that it is clear that the product would not serve its intended purposes in the absence of the candle wax. Thus, we believe that the essential character of the product, as imported, is the candle wax and that the tin merely serves as a holder of the wax. The candle is the portion of the product that distinguishes the article's character as a whole. While the tin may be usable for other purposes when the candle is depleted, we believe that such use would be in the nature of a fugitive use. Accordingly, we believe that the tin and the candle therein are classifiable, in subheading 3406.00.0000, HTSUSA, the provision for candles, tapers and the like. (See Headquarters Ruling Letter 951021, dated April 9, 1992).

We do not believe that the subject candles can be considered festive articles as defined in heading 9505. As noted in numerous Customs rulings, merchandise is classifiable in heading 9505, HTSUSA, as a festive article when the article, as a whole:

1. is of non-durable material or generally, is not purchased because of its extreme worth, or intrinsic value (e.g., paper, cardboard, metal foil, glass fiber, wood);

2. functions primarily as a decoration (e.g., its primary function is not utilitarian); and

3. is traditionally associated or used with a particular festival (e.g. stockings and tree ornaments for Christmas, decorative eggs for Easter)

An article's satisfaction of these three criteria is indicative of classification as a festive article. The motif of an article is not dispositive of its classification and, consequently, does not transform an item into a festive article. In examining the instant article and its packaging, we find no basis for concluding that it is used with the particular festival of Christmas as indicated by counsel. The display box in which the candle tins are packaged, although of a traditional Christmas color and bearing the name "Holiday Time", does not specify that the candles are for Christmas use.

While the candle tins are of traditional Christmas color, red and green, we do not believe that color makes the candles, which may be used throughout the year, and assuming that it meets criteria 1 and 2, noted above, we do not believe that it makes candles a festive article. Even if we were to assume that the candle tins met criteria 1 and 2 noted above, we do not believe that it could be said that the article is traditionally associated or used with a particular festival. The use of angels from certain famous paintings does not transform the candle tins into an article associated with a particular festival. While angels are sometimes associated with Christmas, they are not uniquely so associated with that holiday. (See HRL 952149, dated March 17, 1993).

Accordingly, we have concluded that the subject candle tins should be classified as candles and that they are not articles associated with any particular holiday. We find no basis for concluding that they are exempt from the aforementioned antidumping order.

HOLDING:

Poured candles in red and green tins decorated with angels originally depicted in famous paintings are classifiable in subheading 3406.00.0000, HTSUSA, which provides for candles, tapers and the like. Merchandise so classifiable is subject to a general rate of duty of 4.6 percent ad valorem.

This ruling pertains only to the classification of the subject candles under the HTSUSA. In regard to the question as to whether the product is a Christmas novelty candle and eligible for an exemption from the antidumping order covering petroleum candles from the PRC, the Department of Commerce has jurisdiction over the applicability of antidumping or countervailing (AD/CVD) duties to these articles or their exemption from an antidumping order. Therefore, you may wish to address the AD/CVD issue to that agency.

Sincerely,

John Durant, Director
Tariff Classification

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