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NY G82157




October 6, 2000

CLA-2-95:RR:NC:SP:225 G82157

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.90.6000

Ms. Despina Keegan
Serko & Simon, LLP
One World Trade Center, Suite 3371
New York, N.Y. 10048

RE: The tariff classification of Easter candleholders with candles and ornamental Easter candy dishes from China

Dear Ms. Keegan:

In your letter dated September 11, 2000 you requested a tariff classification ruling on behalf of Russ Berrie and Company Inc.

Samples of the subject articles were submitted with your inquiry. The first item #20113 represents two styles of ceramic candleholders with sphere shaped candles. The candleholders depict a full-figured duck either pulling or pushing a cart made to resemble a cracked eggshell half. The half-eggshell styled cart has two non-moving wheels and is decorated with colored polka dots. The cart serves as the holder for the spherical candles.

Item #20096 is a ceramic candy dish of similar design to item #20113 described above. The only exception in appearance is that the half-eggshell is larger in size to accommodate small candies rather than a single candle.

The next article is a ceramic candy dish, item #20097, which measures approximately 7” in width by 9” in length. The ceramic dish resembles a cracked half-eggshell decorated with polka dots. In the center of the dish is a ceramic figure of a duck lounging inside an inner-tube. The duck is permanently molded into the center of the dish reinforcing its ornamental appeal.

Item #20095 is a ceramic candy dish that resembles a decorated cracked half-eggshell with a duck figure attached who appears to be holding on to the edge of the shell and looking into the bowl. The shell measures approximately 4” in diameter.

Classification is based upon the General Rules of Interpretation. The General Rules of Interpretation (GRIs) 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 this instance, the candleholder and candle of item #20113 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.” The candle and candleholder are viewed as a set whose essential character is imparted by the decorative candleholder.

You have suggested that the submitted items are classifiable as festive articles of Chapter 95. Based on the court decision of Midwest of Cannon Falls Inc. vs. U.S. 96-1271, -1279, we have accepted certain articles 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.

Item numbers #20113, #20096, #20097 and #20095, all appear to satisfy the criteria outlined above. We should note, however, that the symbol that links the products use with Easter is the representation of a decorated cracked eggshell. Customs has established that decorated eggs are an accepted symbol of Easter, a recognized holiday. Ducks, on the other hand, bear no relationship to Easter and are not viewed as a factor in the classification process. In conclusion, based on these findings and your affirmation that the products will be marketed and sold in association with the claimed holiday, we find that the subject articles will qualify for the festive provision. Your samples are being returned as requested.

The applicable subheading for item numbers #20113, #20096, #20097 and #20095, 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.

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 molded in the shape of certain identifiable objects are not within the scope of the antidumping duty order. In our opinion, the sphere shaped candle in item #20113 is not within the scope of the antidumping duty order on petroleum wax candles from China.

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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