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HQ 962803




August 29,2000

CLA-2 RR:CR:GC 962803 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8007.00.1050; 9405.50.4000; 9505.10.5020

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protests 100198104963 and 100198104964; Candleholders, Candle Snuffers, and Votive Holiday Figures

Dear Director:

This is a decision on Protests 100198104963 and 100198104964, against your decision in the classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated August 21 and 28, 1998, and the protest timely filed on November 19, 1998. Our decision follows:

FACTS:

The merchandise consists of 13 styles of goods claimed to be Christmas holiday articles. Protest 100198104963 includes: styles ZH 14, ZH 15, ZH 54 and ZH 57, all candlesticks; styles ZH 68 and ZH 74, both figures with votive lights in back; styles ZH 61, ZH 71, ZH 72, all candle snuffers. Protest 100198104964 includes: styles ZH 68 and ZH 74, as indicated, supra; styles ZH 69 and ZH 70, both figures with votive lights in back; and styles ZH 60 and ZH 62, both candle snuffers. This information is derived from a color 1997 Zrike Holiday catalog, as no sample was provided.

The candlesticks are designed with a metal circular base from 3-4 inches in diameter, supporting a metal post at its center. The post which appears to be from 7-10 inches in height, supports a cup base for a taper candle. Attached to the front of the post in the case of style ZH 14 is a two-dimensional metal angel figure, estimated to be from 4-5 inches in height, holding a string of stars. The angel is in a brown and forest green outfit with gold trim and belt. Style ZH 15 is similar to ZH 14, except that the two-dimensional angel figure is wearing a red and white outfit and is holding her hands together in a prayer posture. Style ZH 54 has a metal two-dimensional snowman figure attached to the "front" of the candlestick. The snowman figure is white, wearing a blue vest, a yellow and red scarf, and a black top hat with a green and gold leaf decoration on the red hatband. It holds a yellow wrapped box, assumed to be a Christmas present. The metal snowman figure appears to be about 6 inches in height, extending from the circular base of the candlestick up to about an inch from the cup that holds the candle. Style ZH 57 is a basically two-dimensional metal Santa head and arms sitting in a sleigh filled with a Christmas tree, a wrapped package, and a blue lap robe. This figure appears to be about 4½-5 inches in height and is contrasted with the other candlesticks in that the figure extends an inch or so beyond the width of the metal base on each side. The sleigh has metal runners that support it and are fastened on either side of the post that supports the body of the figure and the candle.

The figures with votive lights consist of four styles. Style ZH 68 makes use of much of the same style as ZH 54, the snowman with top hat and Christmas gift. Here, however, the snowman's lower portion or base is the circular cup holding the votive light. The figure of the snowman obscures the cup where the votive light would be placed. The body of the snowman is curved around the cup giving the appearance of a solid object. The existence of a votive light is not immediately apparent, as the snowman figurine, itself, serves as a decorative object, with or without the use of a votive light. If a votive light were burning behind the figure, it would illuminate the figure and highlight it, but it would not appear to provide any appreciable light to a room. Style ZH 74 is a rounded version of the Santa in the sleigh figure of style ZH 57. In contrast, style ZH 74 is rounded around the votive cup, obscuring any light. There are no runners to the sleigh as the bottom of the sleigh portion rests on the flat surface where the object is placed. The sleigh is incorporated into the cup, which appears to be from 3-4 inches in diameter. Style ZH 69 is a light blue cup for a votive light. In the front of the cup is attached a slightly convex figure of an angel playing a guitar. The angel is dressed in a purple robe with a light green undergarment. Unlike the votives previously described, this style is obviously a votive light with a metal angel attached in front. Style ZH 70 is a group of three carolers standing in front of a red cup. The carolers are positioned to appear as though the caroler in the middle is standing in the snow in front of the two flanking carolers. The red cup with its white snow element becomes part of the scene. The votive light behind, if lighted, would enhance or set off the figures, but it would not appear to provide any appreciable light to a room.

The candle snuffers function fully as articles for use in the household. Each is a metal cone with a metal handle used to place over a lighted candle to extinguish the flame. In style ZH 61, the bell portion is sheathed in a green metal Christmas tree. ZH 71 has a small metal version of the snowman of styles ZH 54 and ZH 68 attached to one side of the bell portion of the snuffer. Style ZH 72 has the Santa and sleigh figure of ZH 57 and ZH 74 surrounding the bell portion of the snuffer. There are two separated runners to the sleigh showing that the figure has some depth as it fits over the bell portion of the snuffer; however, this decoration in its catalog presentation does not appear to be three-dimensional. In addition, the handle is clearly the handle of a snuffer and has no relation to the figure. Style ZH 60 is a simple candle snuffer with a little holly and berry sprig adorning the top of the bell portion where the metal handle meets the bell. Style ZH 62 is a snuffer with a blue angel figure playing a lyre. The angel's robe covers the bell portion of the snuffer. The robe is blue with purple trim.

You classified the votive lights and candlesticks in subheading 9405.50.4000, HTSUS, in the provision for “Lamps and lighting fittings. . . and parts thereof, not elsewhere specified or included: Non-electrical lamps and lighting fittings: Other: Other." You classified the candle snuffers in subheading 8007.00.1050, HTSUS, the provision for "Other articles of tin: Articles not elsewhere specified or included of a type used for household, table or kitchen use; toilet and sanitary wares; all the foregoing not coated or plated with precious metal, Other."

The protestant claims that the merchandise is classified in heading 9505, specifically in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles . . . parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”

ISSUE:

Whether the Candleholders, Candle Snuffers, and Votive Holiday Figures are classified in heading 9505, HTSUS, as festive articles, or as liquidated.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, 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 upon a review of the articles subject to the Midwest decision, 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, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See the Informed Compliance Publication on the Classification of Festive Articles published in the Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Court considered 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, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the 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.

In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. With respect to styles ZH 68 and ZH 74 from both protests and style ZH 70 from protest 100198104964, as to functionality, the principal question is whether the votive holiday figures are functional, and if so, are they three-dimensional representations of an accepted symbol of the particular holiday.

The votive candle holders listed, supra, are all decorative articles which are not principally utilitarian. While the articles hold a small votive candle, the purpose of the candle is to illuminate the decorative article, not to provide light to a room. We regard these articles as principally decorative and by their design as falling into the class of festive articles. See our decisions regarding Halloween votive candleholders, Headquarters Ruling Letters (HQ) 961874, dated September 14, 1999, and HQ 962801, dated June 23, 2000. Having determined that they are principally decorative, we next look at the symbols represented and the association of those symbols with a particular holiday. With respect to the Santa, this figure has always been held to be festive, based on Customs reading and interpretation of the ENs to heading 9505. Snowmen (ZH 68) and carolers (ZH 70) are somewhat different.

In HQ 961839, dated March 9, 1999, we noted with respect to snowmen claimed to be festive, the following:

“At issue here is whether this snowman plaque, taken as a whole, corresponds to an article used in celebration of a particular holiday. In other words, is the ordinary snowman which is commonly associated with winter, so embellished here with a holly decoration, red scarf and green mittens, that it has become part of the class of festive articles.”

In agreeing that the particular snowmen depicted were, indeed, representations of the class, we went on to state that:
the snowman is not automatically an accepted symbol for the recognized holiday of Christmas. *** The Carborundum factors taken together point to a conclusion that the article is within the class of festive articles. We note that not all snowmen are automatically festive, nor will the presence of holly, or other Christmas-related images automatically qualify the article for classification as a festive article. This is so because the images may appear with articles that are inconsistent with festive use. Likewise, the mere appearance of an article in a Christmas catalog is not sufficient to bring the article into the class of festive articles; however, such an appearance is useful evidence toward that end.

The standards and observations in HQ 961839, apply equally here, both with respect to the snowmen and the carolers. The Carborundum evidence presented here, consisting only of a colored catalog marked "Holiday" appears sufficient to associate these articles with goods that have otherwise been shown to fit into the class of goods deemed festive articles of heading 9505. We note that the snowman holds a wrapped package which has been taken in most contexts as an accepted symbol of the holiday. The carolers are recognizable as such in that they are holding music scores and are dressed in winter clothes and are standing in the snow. In view of this evidence, the snowman and carolers votive holiday figures have been demonstrated to be within the class of festive articles, classifiable in subheading 9505.10.50, HTSUS.

With respect to styles ZH 14, ZH 15, ZH 54, and ZH 57 from protest 100198104963, in each case there is presented a clearly functional article, a candlestick, with a decorative, mainly two-dimensional object attached to the base. It is not relevant that the angels, themselves, do not appear to be automatically accepted symbols of the holiday, and that the snowman and Santa (basically the same design as ZH 74 and ZH 68, supra), are accepted symbols in this case. These articles, while decorative, never lose their identity as candlesticks, classifiable in subheading 9405.50.4000, the provision for "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included;. . .: Non-electrical lights and lighting fittings: Other: Other."

With respect to the style ZH 69, the principles regarding the snowman are equally applicable to angels, with the opposite result. That is, not all angels are qualified as recognized symbols of the holiday. In HQ 962673, dated April 24, 2000, we noted the following with respect to angel figures claimed to be festive:

Angels are not recognized symbols of the holiday of Christmas because angels appear in a variety of settings outside the holiday. Even if an article depicting an angel is sold during the Christmas season and pictured in the Christmas catalog, that fact alone does not establish the connection with a particular holiday. In this connection, we note the existence of prime-time commercial television programs based on an angel theme as but one example of the frequency with which angels appear in popular culture. The particular angels depicted on this merchandise [teapots] have no particular connection with Christmas. The pots make an attractive and interesting gift that would be useable all year, not for celebrating a holiday, but to add a decorative element to the home.

Accordingly, the article is most specifically described in subheading 9405.50.4000, HTSUS, the provision for "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included;. . .: Non-electrical lights and lighting fittings: Other: Other."

With respect to the snuffers, styles ZH 61, ZH 71 and ZH 72 from protest 100198104963, and styles ZH 60 and ZH 62 from protest 100198104964 are fully functioning candle snuffers with handles to keep the user from coming in contact with the flame while extinguishing candles. The articles are not three-dimensional representations of an accepted symbol of a recognized holiday, in part, because of the presence of the handle. We agree that the articles have been decorated, but they do not serve as decorations; they serve as candle snuffers. The identity of these articles as candle snuffers does not change with the addition of a decorative element on the bell of the snuffer. They are classified in subheading 8007.00.1050, HTSUS, the provision for "Other articles of tin: Articles not elsewhere specified or included of a type used for household, table or kitchen use; toilet and sanitary wares; all the foregoing not coated or plated with precious metal, Other."

HOLDING:

Styles ZH 14, ZH 15, ZH 54, and ZH 57, all candlesticks, are classified in subheading 9405.50.4000, the provision for "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included;. . .: Non-electrical lights and lighting fittings: Other: Other."

Styles ZH 68, ZH 74, and ZH 70, all votive holiday figures, are classified in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles . . . parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”

Styles ZH 61, ZH 71, ZH 72, ZH 60, and ZH 62, all candle snuffers, are classified in subheading 8007.00.1050, HTSUS, the provision for "Other articles of tin: Articles not elsewhere specified or included of a type used for household, table or kitchen use; toilet and sanitary wares; all the foregoing not coated or plated with precious metal, Other."

Style ZH 69, the angel with guitar votive light, is classified in subheading 9405.50.4000, the provision for "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included;. . . : Non-electrical lights and lighting fittings: Other: Other."

The protest should be DENIED, except to the extent that classification as provided herein results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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