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HQ 963752




April 12, 2002

CLA-2 RR:CR:GC 963752 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.4000

Port Director of Customs
Attn.: Gerald Rankin
301 East Ocean Blvd.
Long Beach, CA 90802

RE: Protest 270498150033; Candleholders

Dear Port Director:

This is our decision on Protest 270498150033, filed on behalf of Wal-Mart Stores, Inc., against your classification of certain candleholders under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated April 10, 1998, and the protest timely filed on July 9, 1998.

FACTS:

The merchandise consists of candleholders claimed to be Christmas holiday articles. They consist of plastic imitation gold plated French horns decorated with traditional Christmas foliage and ribbons. Two crossed horns are placed with bells pointing downward and mouthpieces upward to form an "X". The cup to hold the base of a taper candle is in the center of the article, between the mouthpieces. The protestant indicates that at the bottom of each candleholder is a wind-up musical mechanism that when activated plays Christmas songs. The material breakdown from the invoice does not indicate anything suggesting a spring or wind-up mechanism, however. No sample has been provided but a black and white photocopy depicting 3 of the articles placed side-by-side over the # 903620 accompanied the protest. The commercial invoice contains the same # and describes the goods as being 8 inches (presumably) in height.

According to the protestant, the merchandise is only sold during the Christmas season in specially designed Christmas decoration sections of the store, along with other Christmas decorative items. When the season is concluded, the goods are removed from sale or the goods are marked down for quick sale.

You classified the candlesticks in subheading 9405.50.4000, HTSUS, the provision for “Lamps and lighting fittings. . . and parts thereof, not elsewhere specified or included: Non-electrical lamps and lighting fittings: Other: 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 subject candleholders are classified in heading 9505, HTSUS, as festive articles, or as non-electrical lamps and lighting fittings of heading 9405, HTSUS.

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, the article is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Because it appears that the article is functional, that is, it is designed to hold a burning taper, we look to whether it presents a three-dimensional representations of an accepted symbol of the particular holiday.

The presence of plastic greenery and a ribbon is not conclusively a symbol of the Christmas holiday, nor is the presence of imitation musical instruments. The candleholders are undoubtedly decorative, but they appear to be suitable for use during the winter season, not for Christmas in particular. In considering evidence recited of a Carborundum character, the article may, indeed, be sold during the Christmas season in the Christmas area of the store. But it does not present a motif that completely identifies it with the holiday of Christmas. By contrast, Customs has classified some taper or candleholders in heading 9505, HTSUS, when they bore three-dimensional symbols associated with the particular holiday. See Headquarters Ruling Letter (HQ) 961874, issued September 14, 1999, in which three styles of taper candle holders with Halloween motif or design were classified in the festive provision. The presence of the outline of a ghost, the word "boo", a pumpkin head, spiderwebs, spiders, and bats, were held sufficient to clearly identify the goods with Halloween. The spiderwebs, spiders, and bats were accepted because of Carborundum evidence and the goods obvious unsuitability for sale and display at times other than at Halloween.

With respect to the instant merchandise, in each case there is presented a clearly functional article, a candlestick, with decorative articles attached to the base. This article, while decorative, never loses its identity as a candlestick, classifiable 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."

Note 1(l) to Chapter 94, HTSUS, states that the chapter does not cover "decorations other than electric garlands) such as Chinese lanterns (heading 9505)." Customs does not regard the instant merchandise as a "decoration.. . . such as [a] Chinese lantern." The candleholders are decorative, as most candleholders are, but are not per se decorations. Therefore, they are not excluded from Chapter 94 by the legal note.

Customs has classified some articles containing a musical movement in subheading 9208.10, HTSUS, which provides for music boxes by name. See HQ 961100, dated December 9, 1998. However, this result depended on the incidentally decorative aspect of the water globe attached to the music box. In that decision it was noted that EN 92.08 states, in pertinent part, that:

Musical boxes. These consist of small mechanical movements playing tunes automatically, incorporated into boxes or various other containers.

Articles which incorporate a musical mechanism but which are essentially utilitarian or ornamental in function (for example, clocks, miniature wooden furniture, glass vases containing artificial flowers, ceramic figurines) are not regarded as musical boxes within the meaning of this heading. These articles are classified in the same heading as the corresponding articles not incorporating a musical mechanism.

The instant article is utilitarian to the extent that it holds a taper candle and provides a decorative base for it. Therefore, whether or not there is a musical movement present in the article is irrelevant to the classification.

Accordingly, the article is 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."

HOLDING:

The candleholder 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.

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
Commercial Rulings Division


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