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HQ 961873




January 29, 1999

CLA-2 RR:CR:GC 961873 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.25; 9505.90.60

Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, NY 10048

RE: Decorative Holiday Candles; Festive Articles

Dear Mr. Simon:

This is in reference to your April 27, 1998, letter on behalf of Midwest of Cannon Falls, Russ Berrie and Company and Papel Giftware Accents & Collectibles, requesting a binding ruling concerning the classification of candles with various holiday motifs under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the candles were submitted for our examination along with copies of the catalogs in which they are advertised for sale.

FACTS:

Item # 21499-2 is a candle molded in the shape of Santa Claus. The portions of the candle which are Santa's suit are colored red with white trimming as well as a black belt. Molded into one hand is an Evergreen tree, in the other a gold sack. The candle has a level wax bottom, allowing it to rest on a flat surface. The entire candle appears to be sprinkled with glitter.

Item # 21442-8 is a candle molded in the shape of a snowman. Portions of the candle have been painted with a top hat adorned with a sprig of holly, a predominantly red and green colored scarf and a red vest, a carrot nose and coal mouth. The snowman holds a molded broom in one hand and a pipe in the other. The candle has a level wax bottom, allowing it to rest on a flat surface. The entire candle appears to be sprinkled with glitter.

Item #s 14337(a) & (b) are identified as "Pumpkin Greeters." They consist of orange colored candles molded in the shape of Jack-o'-lanterns. Triangular eyes, nose and a jagged mouth have been carved into the candle and colored black. Molded green colored stems with protruding wicks rest on top of the candle. The candles have a level wax bottom, allowing them to rest on a flat surface.

Item # L87896 is a candle made of red colored wax and molded in the shape of a heart. The candle has a level wax bottom, allowing it to rest on a flat surface. On the front of the heart appears the phrase "Hugs and Kisses."

Item # L87898 is a candle made of red colored wax and molded in the shape of a heart. The candle has a level wax bottom, allowing it to rest on a flat surface. It is wrapped in a clear polybag which is tied shut with a red satin ribbon. A heart-shaped hang tag is attached to the ribbon and reads "Hot Stuff Candle."

Item # L87478 is a white colored candle in the shape of a seal( with level bottom) with a red colored 3 dimensional heart balancing on its nose. A wick protrudes from the center of the heart. On the front of the heart appears the phrase "S.W.A.K." (sealed with a kiss)

ISSUE:

Whether the candles are classifiable as candles or festive articles.

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," and provided new guidelines for classification of articles in the heading. 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

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," decorative household articles which are representations of an accepted symbol for a recognized holiday. See our Informed Compliance Publication, (ICP) "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998.

In addition to the above listed criteria, 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). In the ICP Customs indicates that for those articles not specifically recognized in Midwest or listed in the ICP, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article belongs to the class or kind "festive articles." Those criteria include: the general physical characteristics of the article, 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.

The subject candles have no precious or semi-precious stones, metals or metal clad with precious metal. Item # 21499-2, a three dimensional representation of Santa Claus, item #s 14337(a) & (b) three dimensional representations of Jack-o'-lanterns, and item # s L87896 and # L87898 three dimensional representations of a heart are articles (candles) which are representations of accepted symbols; Santa Claus, Jack-o'-lanterns and hearts, for recognized holidays, Christmas, Halloween and Valentine's Day, respectively. As such, they are described by heading 9505, HTSUS, and classifiable as festive articles.

While snowmen and seals are not in and of themselves recognized symbols of any holiday, the presence of accepted symbols and the application of the Carborundum factors to the two remaining articles indicate that they are principally used as festive articles. Affidavits from the Chairmen of the importing companies indicate that the articles are sold for a limited amount of time, during the particular holiday's retail season and are used by the ultimate purchaser in the same manner as other festive articles. This, coupled with their inclusion of recognized symbols, indicate that they could be used as festive articles.

The candles are described by both headings. Midwest addressed how to classify an article when it is described by both the festive heading and another one. In Midwest, a series of nutcrackers were determined to be described by both the festive articles heading (9505) and the doll heading (9502). The Court stated that "dolls" was an eo nomine provision and that "ornament" was a use provision. It then held that: "... a use heading is generally more specific that an eo nomine one." However, rather than adopting a rule for deciding between an eo nomine and a use provision under the HTSUS, the Court chose to determine that the heading 9505 classification was more specific based on "all the factors and circumstances." We have performed a similar analysis in this case. That is, we have compared the term "festive article" in heading 9505 to the term "candle" in heading 3406 and found, that for these particular candles, heading 9505 is more specific for tariff purposes.

Finally, 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 subject articles as they are not "Christmas tree candles."

HOLDING:

Item #s 21499-2 and 21442-8 are classifiable in subheading 9505.10.25, HTSUS, as a "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [c]hristmas ornaments: [o]ther."

Item #s 14337 (a)& (b), L87896, L87898 and L87478 are classifiable 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."

Sincerely,

John Durant, Director
Commercial Rulings Division

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