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NY F83412




March 22, 2000

CLA-2-95:RR:NC:SP:225 F83412

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Amy Johnson
Wal Mart Stores, Inc.
702 Southwest 8th Street
Bentonville, AR 72716-8023

RE: The tariff classification of Halloween candleholders, with and without a candle, from China

Dear Ms. Johnson:

In your letter dated February 29, 2000 you requested a tariff classification ruling.

The articles submitted include two candleholders and one candle. The “Metal Spider Candle Holder with Ball Candle,” item #81705, consists of a metal candleholder that resembles a black spider and a ball shaped petroleum wax candle measuring approximately 2-1/4” in diameter. The center of the spider’s body is made up of a sphere shaped plate with a spike in the center to hold the candle in place. The spider has eight probing legs and features a large iridescent marble that serves as its head.

Item #81707 is a “Metal Hanging Spider Web Candle Holder” (without candle). The article is made up of two separate pieces that attach together to form a complete unit. The larger piece may be described as an arc shaped metal rod affixed to a sphere base. Two spiders are situated along the arc. Each spider features an iridescent marble incorporated within their bodies. A third spider is affixed to a web-like configuration that hooks onto the top of the arc. A round metal plate, approximately 2” in diameter, is welded to the bottom of the web and serves as a base for a candle (candle not included). Upon assembly of the unit with a candle, the lit candle will illuminate the spider web.

This office will assume, for purposes of this letter, that the candleholders are made of base metal (not precious metal or metal clad with precious metal). Your samples are being returned as requested.

Classification is based upon the General Rules of Interpretation. The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the Harmonized Tariff Schedule of the United States (HTS). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes. Goods that cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's taken in order.

GRI 3(b) defines "goods put up in sets for retail sale." Such goods: (a) consist of at least two different articles that are classifiable in different headings, (b) consist of products put up together to meet a particular need or carry out a specific activity, and (c) are put up in a manner suitable for sale directly to users without repacking.

In the case of item #81705, the candleholder and candle meet the requirements of a set for classification purposes. GRI 3(b) states in part that "goods made up of different components which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character.” This office finds the metal spider candleholder imparts the essential character of this set.

Based on the court decision of Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279, we have accepted certain products within the festive article provision that are representations of accepted symbols for a recognized holiday. A range of factors are considered in determining when an article qualifies for the festive provision. 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.

Additionally, we must consider 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.

The instant candleholders appear to satisfy all three criteria (assuming the items are not made of precious metal or metal clad with precious metal). The items serve as both a decoration and as a utilitarian item for Halloween. They each depict a three-dimensional, full-bodied, representation of an accepted symbol (spider in web) of an accepted holiday (Halloween). In addition, this office is satisfied with your affirmation that the items are marketed and sold in association with the claimed holiday. Based upon these findings, it our opinion that item numbers 81705 and 81707 are classifiable as festive articles in Chapter 95.

The Department of Commerce (DOC) has determined that petroleum wax candles in the following shapes: tapers, spirals, and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers are within the scope of the antidumping duty order on petroleum wax candles from China. The DOC has also determined that candles shaped in the form of certain recognizable objects are not within the scope of the antidumping duty order for petroleum wax candles for China. In our opinion, the ball shaped candle is not within the scope of the antidumping duty order.

The applicable subheading for item numbers #81705 and #81707 will be 9505.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: other: other. The rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice J. Wong at 212-637-7028.

Sincerely,

Robert B. Swierupski
Director,

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