CLA-2 RR:CR:GC 961290 MMC
Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut Street
Philadelphia PA 19106
RE: Ceramic "Jack-O'-Lantern" container with poured candle
Dear Mr. Liberati:
This is in response to your March 11, 1997, letter on behalf
of Liss Brothers Inc., to the Director, Customs National
Commodity Specialist Division, New York, requesting a binding
classification ruling for an article described as a wax filled
ceramic "Jack-O'-Lantern" pumpkin-shaped container under the
Harmonized Tariff Schedule of the United States (HTSUS). A
sample was submitted with your request. Your letter was referred
to this office for reply. We regret the delay.
FACTS:
The article identified as Item #80072CD, consists of a
ceramic pumpkin-shaped container measuring approximately 2 ¬
inches wide and 3 inches deep, with molded "Jack-O'-Lantern"
features. The container is painted orange, with black and yellow
accents for the features. An orange petroleum wax candle molded
to the shape of the container, fills the inside portion and can
not be removed.
ISSUE:
Whether the ceramic "Jack-O'-Lantern" with a poured candle
is classified as a candle of heading 3406, HTSUS, or as a festive
article of heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the HTSUS is such that virtually all goods are
classified by application of GRI 1, that is, 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's may
then be applied. The headings under consideration are as
follows:
3406 [c]andles, tapers, and the like
9505 [f]estive, carnival or other entertainment
articles, including magic tricks and practical
joke articles; parts and accessories thereof.
In Midwest of Cannon Falls, Inc. v. United States, Court No.
92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Int'l. Trade,
January 18, 1996), 122 F.3d 1423 (Fed Cir. 1997) (hereinafter
Midwest), the Court addressed the scope of heading 9505, HTSUS,
specifically, the class or kind "festive articles." It applied
its conclusions to 29 specific articles to determine whether they
were included within the scope of the class "festive articles."
This application provided new guidelines for the classification
of festive articles. In general, merchandise is classifiable in
heading 9505, HTSUS, as a festive article 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
In addition, the Court gave consideration to 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). As such, for
those articles involving holidays and symbols not specifically
recognized in Midwest, in addition to the above criteria, Customs
will consider the general criteria set forth in Carborundum in
determining whether the particular article belongs to the class
or kind "festive articles."
The ceramic "Jack-O'-Lantern" container with a poured candle
has no precious or semi-precious stones, metals or metal clad
with precious metal. It functions primarily as a household
decoration used in celebration of and for entertainment on a
particular holiday; Halloween. Customs recognizes Halloween as a
festive holiday for tariff purposes and the "Jack-O'-Lantern" as
a symbol of that holiday. Furthermore, we recognize that a
"Jack-O'-Lantern," as a necessary part of its makeup, is often
accompanied by a candle. As such this particular household
decoration belongs to the class or kind of household decorations
considered "festive articles" for tariff purposes.
Note 1(a) to chapter 95 states, in pertinent part, that:
"[t]his chapter does not cover: [c]hristmas tree candles (heading
3604)." This note does not exclude the candles as they are not
"Christmas tree candles." Additionally, the articles are not
within the scope of Antidumping order A-570-504 on petroleum wax
candles from the Peoples Republic of China (see, e.g., June 4,
1997, Federal Register Notice (62 FR 30569)).
The ceramic "Jack-O'-Lantern" container with a poured candle
is classifiable under heading 9505, specifically, subheading
9505.90.60, HTSUS, as "[f]estive, carnival or other entertainment
articles, including magic tricks and practical joke articles;
parts and accessories thereof:[o]ther: [o]ther."
HOLDING:
The ceramic "Jack-O'-Lantern" container with a poured candle
is classified in subheading 9505.90.60, HTSUS the provision for
"[f]estive, carnival or other entertainment articles, including
magic tricks and practical joke articles; parts and accessories
thereof: [o]ther: [o]ther." The applicable duty rate is free.
Sincerely,
John Durant, Director
Commercial Rulings Division