CLA-2 RR:TC:FC 959186K
Port Director
U.S. Customs Service
1000 2nd Ave.
Seattle, Washington 98104-1049
RE: Application For Further Review of Protest No. 3001-96-100255;
Electric Menorah Candle
Holders
Dear Port Director:
The following is our response to the referral by your
office, dated March 25, 1996, of the request for further review
of the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on March 22, 1996, under the provision for other
electric lamps and lighting fittings, in subheading 9405.40.80,
Harmonized Tariff Schedule of the United States (HTSUS), with
duty at the general rate of 3.9 percent ad valorem. A timely
protest under 19 U.S.C. 1514 was received on March 25, 1996. The
protestant requested reliquidation of the entry under the
provision for other festive articles in subheading 9505.90.60,
HTSUS, with a free general rate of duty.
A sample or descriptive literature was not submitted with
the protest review file. However, the articles from Taiwan are
described in the protest as Menorahs made of plastic containing
electric bulbs shaped as flames to represent the flames of
candles in Menorahs. The protestant opines that the tariff
provides free duty for nativity decorative scenes used during
the Christmas season and Menorahs should also be classified as
festive articles used as decorative items during the Hanukkah
season.
ISSUE:
The issue is whether the electric Menorah candle holders are
classified as festive articles in heading 9505, HTSUS.
LAW AND ANALYSIS:
Heading 9505, HTSUS, provides for festive, carnival or
other entertainment
articles, including magic tricks and practical joke articles;
parts and accessories thereof. The subheadings for 1996 are all
free of duty under the general rates as follows.
9505.10 Articles for Christmas festivities and parts and
accessories thereof:
Christmas ornaments:
9505.10.10 Of glass...............................
Other:
9505.10.15 Of wood......................
9505.10.25 Other...........................
9505.10.30 Nativity scenes and figures thereof.....
Other:
9505.10.40 Of plastics......................... ........
Artificial
Christmas trees.....
Other.........................
9505.10.50
Other..................................
Artificial Christmas trees.....
Other..........................
9505.90 Other:
9505.90.20 Magic tricks and practical joke
articles; parts and accessories thereof.............
9505.90.40 Confetti, paper spirals or streamers, party
favors and noisemakers;
parts and accessories
thereof..................
9505.90.60
Other....................................
A review of the subheadings reveals that subheading
9505.10.30, HTSUS, specifically provides for nativity scenes.
As stated by the protestant, there is no corresponding subheading
that specifically provides for Menorahs.
Note 1.(t) Chapter 95, HTSUS, states that the Chapter, which
includes heading 9505, does not cover electric garlands of all
kinds (heading 9405).
Chapter 94, HTSUS, includes lamps and lighting fittings not
elsewhere specified or included. Note 1.(l), Chapter 94, HTSUS,
states in part, that the Chapter does not cover furniture for
magic tricks or decorations (other than electric garlands) such
as Chinese lanterns (9505). The implication here is that
electric garlands are covered in Chapter 94 and not in Chapter 95
(heading 9505).
The articles covered by the protest are electric candles
that may be used by the consumer to celebrate the Hanukkah.
Assuming that they may be considered as festive articles under
heading 9505, HTSUS (and we do not concede this point), they are
precluded from coverage in heading 9505 (as electric lights) by
the Notes to Chapters 94 and 95, HTSUS. This is also true for
electric lights imported as Christmas ornaments.
HOLDING:
Electric Menorah candle holders are classified as other
lamps and lighting fittings, in subheading 9405.40.80, HTSUS,
with duty at the 1996 general rate of 3.9 percent ad valorem.
You are directed to deny the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division