CLA-2 RR:CR:GC 961873 MMC
Mr. Joel K. Simon
Serko & Simon
One World Trade Center, Suite 3371
New York, NY 10048
RE: Decorative Holiday Candles; Festive Articles
Dear Mr. Simon:
This is in reference to your April 27, 1998, letter on
behalf of Midwest of Cannon Falls, Russ Berrie and Company and
Papel Giftware Accents & Collectibles, requesting a binding
ruling concerning the classification of candles with various
holiday motifs under the Harmonized Tariff Schedule of the United
States (HTSUS). Samples of the candles were submitted for our
examination along with copies of the catalogs in which they are
advertised for sale.
FACTS:
Item # 21499-2 is a candle molded in the shape of Santa
Claus. The portions of the candle which are Santa's suit are
colored red with white trimming as well as a black belt. Molded
into one hand is an Evergreen tree, in the other a gold sack.
The candle has a level wax bottom, allowing it to rest on a flat
surface. The entire candle appears to be sprinkled with glitter.
Item # 21442-8 is a candle molded in the shape of a snowman.
Portions of the candle have been painted with a top hat adorned
with a sprig of holly, a predominantly red and green colored
scarf and a red vest, a carrot nose and coal mouth. The snowman
holds a molded broom in one hand and a pipe in the other. The
candle has a level wax bottom, allowing it to rest on a flat
surface. The entire candle appears to be sprinkled with glitter.
Item #s 14337(a) & (b) are identified as "Pumpkin Greeters."
They consist of orange colored candles molded in the shape of
Jack-o'-lanterns. Triangular eyes, nose and a jagged mouth have
been carved into the candle and colored black. Molded green
colored stems with protruding wicks rest on top of the candle.
The candles have a level wax bottom, allowing them to rest on a
flat surface.
Item # L87896 is a candle made of red colored wax and molded
in the shape of a heart. The candle has a level wax bottom,
allowing it to rest on a flat surface. On the front of the heart
appears the phrase "Hugs and Kisses."
Item # L87898 is a candle made of red colored wax and molded
in the shape of a heart. The candle has a level wax bottom,
allowing it to rest on a flat surface. It is wrapped in a clear
polybag which is tied shut with a red satin ribbon. A heart-shaped hang tag is attached to the ribbon and reads "Hot Stuff
Candle."
Item # L87478 is a white colored candle in the shape of a
seal( with level bottom) with a red colored 3 dimensional heart
balancing on its nose. A wick protrudes from the center of the
heart. On the front of the heart appears the phrase "S.W.A.K."
(sealed with a kiss)
ISSUE:
Whether the candles are classifiable as candles or festive
articles.
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," and provided
new guidelines for classification of articles in the heading. 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
Based on a review of the Midwest articles, 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.
See our Informed Compliance Publication, (ICP) "Classification of
Festive Articles," 32 Customs Bulletin 2/3, dated January 21,
1998.
In addition to the above listed criteria, 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). In the ICP Customs indicates that for
those articles not specifically recognized in Midwest or listed
in the ICP, Customs will consider the general criteria set forth
in Carborundum to determine whether a particular article belongs
to the class or kind "festive articles." Those criteria include:
the general physical characteristics of the article, the
expectation of the ultimate purchaser, channels of trade,
environment of sale (accompanying accessories, manner of
advertisement and display), 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.
The subject candles have no precious or semi-precious
stones, metals or metal clad with precious metal. Item # 21499-2, a three dimensional representation of Santa Claus, item #s
14337(a) & (b) three dimensional representations of Jack-o'-lanterns, and item # s L87896 and # L87898 three dimensional
representations of a heart are articles (candles) which are
representations of accepted symbols; Santa Claus, Jack-o'-lanterns and hearts, for recognized holidays, Christmas,
Halloween and Valentine's Day, respectively. As such, they are
described by heading 9505, HTSUS, and classifiable as festive
articles.
While snowmen and seals are not in and of themselves
recognized symbols of any holiday, the presence of accepted
symbols and the application of the Carborundum factors to the two
remaining articles indicate that they are principally used as
festive articles. Affidavits from the Chairmen of the importing
companies indicate that the articles are sold for a limited
amount of time, during the particular holiday's retail season and
are used by the ultimate purchaser in the same manner as other
festive articles. This, coupled with their inclusion of
recognized symbols, indicate that they could be used as festive
articles.
The candles are described by both headings. Midwest addressed
how to classify an article when it is described by both the festive
heading and another one. In Midwest, a series of nutcrackers were
determined to be described by both the festive articles heading
(9505) and the doll heading (9502). The Court stated that "dolls"
was an eo nomine provision and that "ornament" was a use provision.
It then held that: "... a use heading is generally more specific
that an eo nomine one." However, rather than adopting a rule for
deciding between an eo nomine and a use provision under the HTSUS,
the Court chose to determine that the heading 9505 classification
was more specific based on "all the factors and circumstances." We
have performed a similar analysis in this case. That is, we have
compared the term "festive article" in heading 9505 to the term
"candle" in heading 3406 and found, that for these particular
candles, heading 9505 is more specific for tariff purposes.
Finally, 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 subject articles
as they are not "Christmas tree candles."
HOLDING:
Item #s 21499-2 and 21442-8 are classifiable in subheading
9505.10.25, HTSUS, as a "[f]estive, carnival or other entertainment
articles, including magic tricks and practical joke articles; parts
and accessories thereof: [c]hristmas ornaments: [o]ther."
Item #s 14337 (a)& (b), L87896, L87898 and L87478 are
classifiable 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."
Sincerely,
John Durant, Director
Commercial Rulings Division