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HQ 961290




January 15, 1999

CLA-2 RR:CR:GC 961290 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.60

Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut Street
Philadelphia PA 19106

RE: Ceramic "Jack-O'-Lantern" container with poured candle

Dear Mr. Liberati:

This is in response to your March 11, 1997, letter on behalf of Liss Brothers Inc., to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for an article described as a wax filled ceramic "Jack-O'-Lantern" pumpkin-shaped container under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with your request. Your letter was referred to this office for reply. We regret the delay.

FACTS:

The article identified as Item #80072CD, consists of a ceramic pumpkin-shaped container measuring approximately 2 ¬ inches wide and 3 inches deep, with molded "Jack-O'-Lantern" features. The container is painted orange, with black and yellow accents for the features. An orange petroleum wax candle molded to the shape of the container, fills the inside portion and can not be removed.

ISSUE:

Whether the ceramic "Jack-O'-Lantern" with a poured candle is classified as a candle of heading 3406, HTSUS, or as a festive article of heading 9505, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRI's may then be applied. The headings under consideration are as follows:

3406 [c]andles, tapers, and the like

9505 [f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Int'l. Trade, January 18, 1996), 122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles." It applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class "festive articles." This application provided new guidelines for the classification of festive articles. In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

3. Is associated with or used on a particular holiday

In addition, the Court gave consideration to 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). As such, for those articles involving holidays and symbols not specifically recognized in Midwest, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum in determining whether the particular article belongs to the class or kind "festive articles."

The ceramic "Jack-O'-Lantern" container with a poured candle has no precious or semi-precious stones, metals or metal clad with precious metal. It functions primarily as a household decoration used in celebration of and for entertainment on a particular holiday; Halloween. Customs recognizes Halloween as a festive holiday for tariff purposes and the "Jack-O'-Lantern" as a symbol of that holiday. Furthermore, we recognize that a "Jack-O'-Lantern," as a necessary part of its makeup, is often accompanied by a candle. As such this particular household decoration belongs to the class or kind of household decorations considered "festive articles" for tariff purposes.

Note 1(a) to chapter 95 states, in pertinent part, that: "[t]his chapter does not cover: [c]hristmas tree candles (heading 3604)." This note does not exclude the candles as they are not "Christmas tree candles." Additionally, the articles are not within the scope of Antidumping order A-570-504 on petroleum wax candles from the Peoples Republic of China (see, e.g., June 4, 1997, Federal Register Notice (62 FR 30569)).

The ceramic "Jack-O'-Lantern" container with a poured candle is classifiable under heading 9505, specifically, subheading 9505.90.60, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:[o]ther: [o]ther."

HOLDING:

The ceramic "Jack-O'-Lantern" container with a poured candle is classified in subheading 9505.90.60, HTSUS the provision for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther: [o]ther." The applicable duty rate is free.

Sincerely,

John Durant, Director
Commercial Rulings Division


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