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HQ H019363




January 22, 2008

CLA-2 OT:RR:CTF:TCM H019363 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.95.05

Ms. Trudi Van Heuveln
Impact Innovations, Inc.
223 SE 1st Avenue
Clara City, MN 56222

RE: Classification of four Halloween wax candleholders

Dear Ms. Van Heuveln:

This letter is in response to your request of August 31, 2007, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four Halloween wax candleholders. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response.

FACTS:

The merchandise at issue consists of three-dimensional wax candle holders identified as “Frankie”, “Ghost”, “Jack” and “Witch.” The four candle holders are designed to resemble a partially melted Frankenstein’s monster head, a witch head, a ghost head and a Jack-o-lantern. Each candle holder has a socket for holding a tapered candle and measures 3 inches high by 4 inches wide by 4 inches deep.

ISSUE:

Whether the wax candle holders are classified in heading 9817.95, HTSUS, as a 3-dimensional utilitarian article, or heading 9405, HTSUS, as a non-electrical lamp or lamp fitting.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 9405, HTSUS, provides for “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included.” Subheading 9405.50, HTSUS, specifically provides for “Non-electrical lamps and lighting fittings” under heading 9405, HTSUS.

The EN to heading 9405, HTSUS, reads in relevant part:

This heading covers in particular:

(6)   Candelabra, candlesticks, candle brackets, e.g., for pianos.

  Subheading 9817.95.05, HTSUS, provides for:

Articles classifiable in subheadings 9405.50, the foregoing meeting the descriptions below: Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.

U.S. Note 1 to Chapter 98, HTSUS, provides:

The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a). Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met.

The wax candleholders meet the terms of subheading 9405.50, HTSUS. See HQ 967355, dated November 30, 2004. The wax candle holders also meet the terms of subheading 9817.95.05, HTSUS, as they are utilitarian three-dimensional representations of symbols that are closely associated with Halloween. They are designed, marketed and sold during and in celebration of Halloween. Halloween is a recognized holiday. See Park B. Smith Ltd. v. United States, 347 F.3d 922, 929 (CAFC, October 21, 2003). Pursuant to U.S. Note 1 to Chapter 98, HTSUS, the wax candle holders meet the terms of subheading 9817.95.05, HTSUS, and are classified therein.

HOLDING:

By application of U.S. Note 1 to Chapter 98, HTSUS, the wax candle holders are classified in subheading 9817.95.05, HTSUS, which provides for “Articles classifiable in subheadings 3924.10, 3926.90, 6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40 or 9405.50, the foregoing meeting the descriptions set forth below: Utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States." The column one, general rate of duty is Free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov/tata/hts/.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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