OT:RR:CTF:CPMM H310688 KSG
Ms. Amanda Wilson
Dillard’s, Inc.
1600 Cantrell Road
Little Rock, AR 72201
Ms. Jenny Davenport
Wal*Mart Stores, Inc.
Mail Stop #0410 – L - 32
601 N. Walton
Bentonville, AR 72716-0410
Mr. Paul A. Barkan and Mr. Asher Rubinstein
Grunfeld, Desiderio, Lebowitz & Silverman
245 Park Avenue
33rd Floor
New York, New York 10167-3397
RE: Revocation of NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910; tariff classification of menorah
Dear Ms. Wilson, Ms. Davenport, Mr. Barkan and Mr. Rubinstein:
This letter is in reference to New York Ruling Letter (NY) J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910, regarding the classification of a menorah in the Harmonized Tariff Schedule of the United States (HTSUS).
In NY J82947, NY I84339, NY E80531, NY D86108, NY D85910, and NY D86109, U.S. Customs & Border Protection (CBP) classified a menorah in subheading 9505.90.60, HTSUS, which provides for " Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other."
We have reviewed NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910, and determined that the rulings are in error. Accordingly, for the reasons set forth below, CBP is revoking NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910 was published on April 14, 2021, in Volume 55, Number 13 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
All the cases except NY D86109 involve a menorah that holds nine candles and is used in the home in celebration of Hanukkah.
NY D86109 involves a plastic electrical menorah that has nine light bulbs (instead of the traditional candles) that would be used in the home in celebration of Hanukkah.
ISSUE:
Whether the menorahs are properly classified in heading 9505 as a festive article or in heading 9405 as lamps or lighting fittings with a secondary classification in subheading 9817.95.01.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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. If 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 GRIs 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply unless the context otherwise requires.
The HTSUS subheadings under consideration are the following:
9405 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:
9405.40 Other electric lamps and lighting fittings:
9405.40.84 Other:
Other
9405.50 Non-electrical lamps and lighting fittings:
9405.50.40 Other
9505 Festive, carnival or other entertainment articles, including
magic tricks and practical joke articles; parts and accessories
thereof:
9505.90 Other:
9505.90.60 Other
9817.95 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:
9817.95.01 Utilitarian articles of a kind used in the home in the performance of specific religious or cultural ritual celebrations for religious or cultural holidays, or religious festive occasions, such as Seder plates, blessing cups, menorahs, or kinaras
Chapter Note 1(w), Chapter 95, HTSUS, excludes "Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material)" from Chapter 95.
Presidential Proclamation No. 8097, 72 Fed. Reg. 453 (Jan. 4, 2007), added Note 1(v) to Chapter 95 (Now Note 1(w)) to Chapter 95). The addition of Note 1(w) in 2007 precludes certain utilitarian articles from classification under heading 9505, HTSUS. Menorahs are utilitarian articles used in the celebration of a holiday that would be excluded from Chapter 95 by Chapter Note 1(w). For instance, CBP classified Hanukkah candles in subheading 9817.95.01, HTSUS, in Headquarters Ruling Letter (HQ) H269230, dated November 24, 2015, rather than in heading 9505. Since Chapter Note 1(w) was added to Chapter 95 in 2007, NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910 are now incorrect and void by operation of law.
Traditional menorahs that hold candles would be classified in subheading 9405.50.40, HTSUS, because they are non-electrical. The plastic electrical menorah would be classified in subheading 9405.40.84, HTSUS.
Both the traditional and electrical menorahs would be eligible for duty-free treatment in accordance with subheading 9817.95.01, HTSUS as articles primarily classified in subheadings 9405.40 or 9405.50, HTSUS, and are utilitarian articles of a kind used in the home in the performance of Hanukkah, a religious holiday. Menorahs are listed in subheading 9817.95.01, HTSUS, as an example of an article included within the subheading.
HOLDING:
Pursuant to GRI's 1 and 6, the traditional menorahs are classified in subheading 9405.50.40, HTSUS. The plastic electrical menorah is classified in subheading 9405.40.84, HTSUS. Both the traditional and electrical menorahs are eligible for duty-free treatment in accordance with subheading 9817.95.01, HTSUS. The column one, general rate of duty for all the menorahs is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY J82947, NY I84339, NY E80531, NY D86109, NY D86108, and NY D85910
are revoked.
Sincerely,
Allyson Mattanah for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc: NIS Sandra Carlson, and NIS Michael Chen, NCSD