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HQ 962900




October 27, 2000

CLA-2 RR:CR:GC 962900 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5020; 9505.90.60

Mrs. Jean Fair
Import Manager
Liss Brothers, Inc.
14501 Townsend Road
Philadelphia, PA 19154

RE: Revocation of NY C82327, C82940, C82941 and B83722; Decorative Molded Three-Dimensional Holiday Candles; Midwest of Cannon Falls, Inc. v. United States; Festive Articles

Dear Mrs. Fair:

This is in response to your letter of April 13, 1999, requesting reconsideration of New York Ruling Letters (NY) C82327, dated December 15, 1997; C82940, dated December 31, 1997; C82941, dated December 31, 1997, and B83722, dated February 13, 1998, issued to Morris Friedman & Co., acting on behalf of Liss Brothers, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of four styles of decorative molded three-dimensional holiday candles. We regret the delay in responding.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocations of NY C82327, C82940, C82941 and B83722 was published on September 20, 2000, in the Customs Bulletin, Volume 34, Number 38. No comments were received in response to the notice.

This letter is to inform you that NY C82327, C82940, C82941 and B83722 no longer reflect the view of the Customs Service concerning the classification of decorative molded three-dimensional holiday candles and that the following reflects our position for these products.

FACTS:

NY C82327 describes Item # 19003CD, a candle molded in the shape of Santa Claus. Santa’s suit and cap are colored red with white trimming. Santa has a black belt and holds a decorated Christmas tree and a black bag. The candle, measuring about 4 inches in height by 2¼ inches in width, has a level wax bottom, allowing it to rest on a flat surface.

NY C82940 describes Item # 18059, a candle molded in the shape of a decorated Christmas tree, surrounded by several mice, gold stars, and other Christmas ornaments. Several wrapped Christmas presents rest at its base. The candle measures approximately 6 inches in height and 4¼ inches at its widest point. The candle has a level wax bottom, allowing it to rest on a flat surface.

NY C82941 describes Item # 18058, a natural pine cone candle. It is a candle molded into the shape of a pine cone. The candle measures approximately 5 inches in height and 3¾ inches at its widest portion. The pine cone is brown and appears to be dusted in white to simulate snow. The candle has a level wax bottom, allowing it to rest on a flat surface.

NY B83722 describes Item # 80093, Mr. and Mrs. Pilgrim Candle. These are a pair of three-dimensional molded candle figures. Mr. Pilgrim is in a pilgrim outfit with a large white collar and with a buckle on each shoe and on his black hat. He holds a pumpkin. Mrs. Pilgrim is dressed as a woman of the early 17th century with a full skirt and mobcap. She wears an apron and holds some food in a basket. The candle has a level wax bottom, allowing it to rest on a flat surface.

Each of the rulings listed above classified the described candles in heading 3406, HTSUS, the provision for "Candles, tapers and the like."

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. 920300206, 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 # 19003CD, a three-dimensional representation of Santa Claus, item # 18059, a three-dimensional representation of a Christmas tree, and item # 80093, a three-dimensional representations of "Mr. and Mrs. Pilgrim", are articles (candles) which are representations of accepted symbols; Santa Claus and Christmas tree, for the recognized holiday of Christmas and Mr. and Mrs. Pilgrim for Thanksgiving. As such, they are described by heading 9505, HTSUS, and classifiable as festive articles.

While a pine cone, item # 18058, is not in and of itself a recognized symbol of any holiday, its association with accepted symbols here and the application of the Carborundum factors indicate that it is principally used as a festive article. The article appears to be sold for a limited amount of time, during the particular holiday’s retail season and is used by the ultimate purchaser in the same manner as other 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. Included in this analysis is the finding that the candles under consideration here are principally decorative three-dimensional articles which would not be used principally to provide light, but rather to decorate a home for a particular holiday.

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.”

See HQ 961873 dated January 29, 1999, for a similar ruling.

HOLDING:

Item #s 19003CD, 18059, and 18058 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 # 80093 is 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."

NY C82327, C82940, C82941 and B83722 are revoked in accordance with this ruling. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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