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HQ 966002




February 22, 2003

CLA-2 RR:CR:GC 966002 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.4000

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Place
1515 Broadway
New York, NY 10036-8901

RE: Candleholders with Artificial Poinsettia and Pine Sprig Attached, Style PP239233

Dear Ms. Wierbicki:

This is in response to your letter of October 1, 2002, on behalf of Avon, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a metal candleholder with candle that has an artificial poinsettia and pine sprig attached. A sample was provided.

FACTS:

The merchandise consists of a candleholder claimed to be a Christmas holiday article. The candleholder itself measures about 7 inches in height and consists of a substantial metal circular base about four inches in diameter that is concave at the bottom. The bottom is welded to two stylized S-shaped wire portions that are placed in an overlapping position to form a sturdy base standing about 6¾ inches high. The wire portions that are formed into the S-shapes are slightly less than ¼ inch in diameter. The wire S-shaped body of the candleholder is about 4 inches at its widest portion. Another metal disk, concave at the top, is welded on top of the S's and is about 2½ inches in diameter. This cup-shaped portion has a small spike fixed upright to hold a pillar candle. Attached to one side of the candleholder is a corsage-like artificial flower arrangement measuring about 5½ inches in diameter. The artificial flower arrangement consists of a textile poinsettia with gold berries in the center, textile green leaves, artificial pine needles, fake red berries, possibly representing holly, a twisted gold cord, a gold beaded swag and a metallic ribbon bow as a backing for the arrangement. The arrangement is simply attached to the metal candleholder in three places with metallic gold wire "ties" of the type used in supermarkets to close plastic bags for produce.

You state that the candleholder is only sold during the Christmas season in specially designed Christmas catalogues and claim that it 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 candleholder are classified in heading 9505, HTSUS, as festive articles, or as non-electrical lamps and lighting fittings in 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, (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 candle, we look to whether it presents a three-dimensional representation of an accepted symbol of the particular holiday. Examination of the article discloses that the candleholder consists of two elements in addition to the candle, one clearly a candleholder and the other a rather flimsy decorative artificial foliage arrangement that is typically associated with Christmas. The candleholder alone is a sturdy decorative candleholder. The corsage-like artificial foliage arrangement alone might adorn a Christmas wreath, a wrapped gift, or the like. It is attached in a temporary manner to the candleholder by three insubstantial wire ties. The candle is a general purpose scented candle with no particular connection to any holiday. Therefore, in applying the criteria from the Midwest decision, the article fails to be anything, as a whole, because, no heading describes all the components at the heading level.

The composite article consist of three components which together provide a decorative gift, but which, if imported separately, would be classifiable under separate headings, i.e., heading 9405, HTSUS, for the metal candleholder; heading 3406, HTSUS, for the candle; and heading 9505, HTSUS, for the artificial foliage arrangement. Therefore, the article is not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, “When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:. . . when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “. . . composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

The EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this instance, the metal candleholder is the primary component of the composite good which permits it to perform its primary function of presenting a candle that may be burned, while the artificial foliage arrangement serves a secondary function of adorning the candleholder. The function of the three components together is consistent with the function of candleholders, namely to hold candles and to permit them to be burned safely. The candleholder presents the greatest weight of the article, the largest component by dimension and the one component that is extremely durable. Long after the candle is burned and consumed and the artificial foliage is ragged, the candleholder will still be usable as a candleholder. The temporary manner in which the foliage is attached suggests that the candleholder is intended to be used in other settings. Because the metal candleholder component supplies the essential character of the good, the classification of the metal candleholder will govern the classification of the whole good.

In considering evidence recited of a Carborundum character, the article may, indeed, be sold during the Christmas season in the Christmas catalogues, and while this is noted, the artificial foliage attachment or component does not convert the article into a festive article, as it remains a candleholder. By contrast, Customs has classified some taper or candleholders in heading 9505, HTSUS, when they bore three-dimensional symbols associated with the particular holiday and those symbols were actually metal components of the metal candleholder. 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, as actually part of the taper candleholder 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.

The instant merchandise presents a clearly functional article, a candleholder, with decorative articles attached to the base. This article, while decorative, never loses its identity as a candleholder, 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 candleholder is decorative, as most candleholders are, but is not per se a decoration. Therefore, it is not excluded from Chapter 94 by the legal note.

The instant article is utilitarian to the extent that it holds a pillar candle and provides a decorative base for it. For classification purposes, it is considered a composite good because the components are attached to each other to form a practically inseparable whole. EN to GRI 3(b) and paragraph (IX). As noted, supra, the foliage is attached by wires, and the candle is affixed to the cup by a spike as will be replacement candles when the initial candle is consumed. As a composite good, the article is subject to classification under GRI 3(b). .

This decision is in accord in principle with HQ 963752, dated April 12, 2002, although both the decorative attachment and the shape of the candleholder differ in design. 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."

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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