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HQ 960371




April 14, 1998

CLA-2 RR:CR:GC 960371 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5000

Mr. Dan Gallagher,
Director, Merchandise Planning and Control Dollar Tree Stores, Inc.
P.O. Box 2500
Norfolk, VA 23501

RE: NYRL B82959 revoked: Three dimensional Santa Claus candle holder

Dear Mr. Gallagher:

On March 26, 1997, you requested reconsideration of New York Ruling Letter (NYRL) B82959 dated March 11, 1997, issued on your behalf to Fritz Companies, Inc. which held, that a three dimensional Santa Claus candle holder (item number 3346A-D) was classifiable under heading 9405 of the Harmonized Tariff Schedule of the United States (HTSUS). Heading 9405, HTSUS, provides for "[l]amps 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." Upon further examination, we are of the opinion that the three dimensional Santa Claus candle holder is properly classified under heading 9505, HTSUS, which provides for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof." A sample of the candle holder was forwarded for our review.

Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of NYRL B82959 was published, on March 4, 1998, in the Customs Bulletin, Volume 32, Number 9. No comments were received in response to the notice.

FACTS:

The article is a 5 inch tall ceramic candle holder. A metal reservoir has been fixed into the top of the ceramic structure and serves to hold a candle. The remaining ceramic form has been molded to create a three dimensional representation of Santa Claus' head and face. On top of Santa Claus' head is a holly crown. Four additional complete representations of Santa Claus separated by evergreen trees form the remainder of the structure below Santa Claus' beard.

ISSUE:

Whether the three dimensional Santa Claus candle holder is classifiable as a candle holder under heading 9405, HTSUS, or as a "festive article" under heading 9505, HTSUS.

LAW AND ANALYSIS:

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996) and Court No. 96-1271, 96-1279, 1997 U.S. App. LEXIS 21617 (Fed. Cir. August 14, 1997) [hereinafter Midwest], the court addressed the scope of heading 9505, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class. According to the court all of the articles were classifiable as "festive."

Based on a review of the Midwest articles, Customs is of the opinion that the court has included within the scope of the class "festive articles," certain utilitarian articles which are a three dimensional representation of an accepted symbol for a recognized holiday. For a detailed listing of those articles, holidays, and symbols, see 32 Customs Bulletin 2/3, dated January 21, 1998.

In making a determination on the articles, the court applied the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 [hereinafter Carborundum]. Therefore, for those articles, holidays and symbols not specifically recognized in Midwest, Customs will apply the general criteria for classification set forth in Carborundum. Those criteria include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

By application of the above analysis, Customs is of the opinion that the three dimensional Santa Claus candle holder is classifiable under subheading 9505.10.5020, HTSUS. In Midwest, Christmas was recognized as a holiday and Santa Claus , in his various forms, an accepted symbol of that holiday. Furthermore, the court has included within the scope of heading 9505, HTSUS, utilitarian articles which are a three dimensional representation of an accepted symbol for a recognized holiday. The candle holder is a utilitarian object, in that it functions by holding a candle, and has an three dimensional representation of accepted symbol, Santa Claus, for a recognized holiday, Christmas.

HOLDING:

The three dimensional Santa Claus candle holder is classifiable under subheading 9505.10.5020, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof:[o]ther:[o]ther," with a 1998 column one duty rate of free.

NYRL B82959 is revoked. In accordance with 19 U.S.C. publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division


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