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HQ 959186




January 27, 1997

CLA-2 RR:TC:FC 959186K

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.40.80

Port Director
U.S. Customs Service
1000 2nd Ave.
Seattle, Washington 98104-1049

RE: Application For Further Review of Protest No. 3001-96-100255; Electric Menorah Candle
Holders

Dear Port Director:

The following is our response to the referral by your office, dated March 25, 1996, of the request for further review of the above-referenced protest.

FACTS:

The consumption entry covering the imported merchandise was liquidated on March 22, 1996, under the provision for other electric lamps and lighting fittings, in subheading 9405.40.80, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 3.9 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on March 25, 1996. The protestant requested reliquidation of the entry under the provision for other festive articles in subheading 9505.90.60, HTSUS, with a free general rate of duty.

A sample or descriptive literature was not submitted with the protest review file. However, the articles from Taiwan are described in the protest as Menorahs made of plastic containing electric bulbs shaped as flames to represent the flames of candles in Menorahs. The protestant opines that the tariff provides free duty for nativity decorative scenes used during the Christmas season and Menorahs should also be classified as festive articles used as decorative items during the Hanukkah season.

ISSUE:

The issue is whether the electric Menorah candle holders are classified as festive articles in heading 9505, HTSUS.

LAW AND ANALYSIS:

Heading 9505, HTSUS, provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof. The subheadings for 1996 are all free of duty under the general rates as follows.

9505.10 Articles for Christmas festivities and parts and accessories thereof:
Christmas ornaments:
9505.10.10 Of glass............................... Other:
9505.10.15 Of wood......................
9505.10.25 Other........................... 9505.10.30 Nativity scenes and figures thereof..... Other:
9505.10.40 Of plastics......................... ........ Artificial
Christmas trees.....
Other.........................
9505.10.50
Other..................................
Artificial Christmas trees.....
Other..........................
9505.90 Other:
9505.90.20 Magic tricks and practical joke articles; parts and accessories thereof.............

9505.90.40 Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof..................

9505.90.60
Other....................................

A review of the subheadings reveals that subheading 9505.10.30, HTSUS, specifically provides for nativity scenes. As stated by the protestant, there is no corresponding subheading that specifically provides for Menorahs.

Note 1.(t) Chapter 95, HTSUS, states that the Chapter, which includes heading 9505, does not cover electric garlands of all kinds (heading 9405).

Chapter 94, HTSUS, includes lamps and lighting fittings not elsewhere specified or included. Note 1.(l), Chapter 94, HTSUS, states in part, that the Chapter does not cover furniture for magic tricks or decorations (other than electric garlands) such as Chinese lanterns (9505). The implication here is that electric garlands are covered in Chapter 94 and not in Chapter 95 (heading 9505).

The articles covered by the protest are electric candles that may be used by the consumer to celebrate the Hanukkah. Assuming that they may be considered as festive articles under heading 9505, HTSUS (and we do not concede this point), they are precluded from coverage in heading 9505 (as electric lights) by the Notes to Chapters 94 and 95, HTSUS. This is also true for electric lights imported as Christmas ornaments.

HOLDING:

Electric Menorah candle holders are classified as other lamps and lighting fittings, in subheading 9405.40.80, HTSUS, with duty at the 1996 general rate of 3.9 percent ad valorem.

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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