#  HQ 962647

April 5, 2000

CLA‑2 RR:CR:GC 962647 JGB

CATEGORY: Classification

TARIFF NO.: 9505.10.2500

Port Director

U.S. Customs Service

Port of Boston

10 Causeway Street

Boston, MA 22220

RE: Protest 0401‑98‑100125; Electric Christmas Candles, Candoliers and
Lighted Tree Toppers; festive articles

Dear Director:

This is a decision on Protest 0401‑98‑100125 against your decision in
the classification of various electric candles, candoliers, and tree
toppers under the Harmonized Tariff Schedule of the United States
(HTSUS). The entries, made in 1997, were liquidated from March 13
through June 5, 1998, and the protest timely filed on June 10, 1998.

**FACTS:**

The merchandise at issue in this protest is imported by Noma,
International, and is marketed and sold during the Christmas selling
season.

This decision covers three entries in the protest:: 336-2074488-9;
336-2075157-9 and 336-2503666-2. The protestant has abandoned its claims
with respect to the remaining entries in the protest, identified as
336-2073036-7, 336-2073721-4 and 336-2074487-1. The items at issue here
are described as follows:

Item #1001C is a 10 inch single electric candle consisting of an oval
plastic base, a plastic tube, about ¾ inch in diameter, intended to
simulate a candle body, and a socket on top for a "Christmas tree bulb"
candelabra screw base C7 bulb. The electric bulb is powered by an
electric cord threaded through the candle tube and extending through the
base. The plug is used in normal household outlets.

Item #1503C is a 3 Light Candolier. This article is a variation of
#1001C in that it has a plastic base about 9¼ inches wide that
accommodates 3 simulated candles set side by side that have bulbs on
top. They are powered by a single electrical cord.

Item #1505 is a 5 Light Candolier, designed on the same principle, with
5 simulated candles and a plastic base measuring about 14¼ inches in
width. The lights are wired to burn independently of one another. The
center light is the tallest in the 3 and 5 light models with the lateral
lights graduating downward in height on either side.

Item #4951 is a 5 Point Star Tree Topper with 11 electric light bulbs at
various points of the star. It is designed to be placed at the top of a
Christmas tree.

Item #4956 is described as an 11 light Mini-wreath Tree Topper. It
consists of 11 electric lights positioned on a star shape made of
artificial evergreen material in 2 styles and around a circular
"starburst" in two other styles. All are designed to be placed at the
top of a Christmas tree.

You classified the articles in subheading 9405.40.80, HTSUS, the
provision for "Lamps and lighting fittings\...and parts thereof not
elsewhere specified or included: Other electric lamps and lighting
fittings: Other," dutiable at 3.9 percent ad valorem (1997).

The protestant claims classification for each of the articles in
subheading 9505.10.25, HTSUS, the provision for "Festive, carnival or
other entertainment articles\...parts and accessories thereof: Articles
for Christmas festivities and parts and accessories thereof: Christmas
ornaments: Other: Other," free of duty.

**ISSUE:**

Whether the subject articles are classified within heading 9405 as
electrical lamps and lighting fittings or within heading 9505, as
festive articles.

**LAW AND ANALYSIS**:

The General Rules of Interpretation (GRIs) taken in their appropriate
order provide a framework for classification of merchandise under the
HTSUS. Most imported 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 GRIs may then be
applied. The Explanatory Notes (ENs) to the Harmonized Commodity
Description and Coding System, which represent the official
interpretation of the tariff at the international level, facilitate
classification under the HTSUS by offering guidance in understanding the
scope of the headings and GRIs.

Heading 9505, HTSUS, provides, among other things, for festive, carnival
or other entertainment articles. Articles for Christmas festivities are
specifically provided for in subheading 9505.10, HTSUS. Although the
articles that are the subject of this protest are described by the
headings in which the entries were liquidated, consideration must be
given to relevant section and chapter notes.

Note 1(l) to Chapter 94, HTSUS, which covers heading 9405, provides that
this chapter does not cover "decorations (other than electric garlands)
such as Chinese lanterns (heading 9505)" of Chapter 95. Thus, if the
subject electric candles, candoliers and tree toppers are classifiable
under heading 9505, then note 1(l) to Chapter 94 precludes
classification under heading 9405 and necessitates classification under
Chapter 95.

In *Midwest of Cannon Falls, Inc. v. United States*, Slip Op. 96-19 (Ct.
Int'l Trade, 1996), *aff'd in part, rev'd in part*, 122 F.3d 1423,
Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter *Midwest*),
the Court addressed the scope of heading 9505, HTSUS, specifically the
class or kind of merchandise termed "festive articles," and provided new
guidelines for classification of such goods in the heading. In general,
merchandise is classifiable as a festive article in heading 9505, HTSUS,
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 upon a review of the articles subject to the *Midwest* decision,
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, and
utilitarian/functional articles that are three-dimensional
representations of an accepted symbol for a recognized holiday. See the
Informed Compliance Publication on the Classification of Festive
Articles published in the *Customs Bulletin*, Volume 32, Numbers 2/3,
dated January 21, 1998.

In addition to the criteria listed above, the Court considered 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*). Therefore, with
respect to decorative and utilitarian articles related to holidays and
symbols not specifically recognized in *Midwest* or in the Customs
Bulletin dated January 21, 1998, Customs will also consider the general
criteria set forth in *Carborundum* to determine whether a particular
good belongs to the class or kind "festive articles." Those criteria
include the general physical characteristics of the article, the
expectation of the ultimate purchaser, the channels of trade, the
environment of sale (accompanying accessories, manner of advertisement
and display), the 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.

With respect to the electric candles and candoliers, both are
principally decorative in that the bulbs in this configuration would not
ordinarily give off enough light to illuminate a room. The electric
candle alone is not an accepted symbol of a recognized holiday;
therefore, this article is not automatically classified in heading 9505,
unless convincing *Carborundum* evidence is also present. In the context
of this case, it is clear that the electric candles and candoliers are
used with other Christmas articles to decorate the home, and, in the
words of the *Midwest* appeals court, "will be displayed and used by the
consumer during" the particular holiday to which they relate. With
respect to the note to Chapter 94, *supra*, lighting articles like
Chinese lanterns that are principally decorative are not meant to be
classified in Chapter 94. There is a substantial decorativeness to them
that could exclude them from Chapter 94. This is not to say, however,
that any article that gives light is excluded from Chapter 94 by virtue
of being decorative. Almost all electric articles that provide some
light and are classified in Chapter 94 would be to some degree
decorative by design. But, subject to the relative section and chapter
notes, in those instances where the function of giving light is merely
incidental to the decorativeness of the article, the article will be
precluded from classification in Chapter 94. In view of the
*Carborundum* evidence presented, the electric candles and candoliers
are classified in heading 9505. Such evidence is supplied here with the
identification of the times of sale, the inclusion of the appropriate
pages from the importer's Christmas catalog, and the fact that the
articles at issue are bought and sold as Christmas articles. They will
likely be put away after the holiday and brought out again the next
year. Although the candles and candoliers are illuminated with household
electric current, the classification would not change with similar
battery-operated models.

As to the tree toppers, these articles are even more closely associated
with home decoration at the Christmas season than the candoliers.
Standing alone without the electric lights, they would qualify by their
sale and use as Christmas tree ornaments. The addition of the electric
lights only enhances their decorativeness, but it does not turn them
into lighting fixtures of Chapter 94. They are still classified in
heading 9505, because they are not excluded by Note 1 (t) to Chapter 95
which excludes electric garlands of all kinds. These articles are not
described as "electric garlands of all kinds" because they do not
possess the draping characteristics associated with garlands. See New
York Ruling Letter (NY) C81254, dated April 30, 1998, for a ruling on
similar merchandise.

All the articles at issue in this protest are classified under heading
9505, HTSUS, specifically in subheading 9505.10.25, HTSUS, the provision
for "Festive, carnival or other entertainment articles\...parts and
accessories thereof: Articles for Christmas festivities and parts and
accessories thereof: Christmas ornaments: Other: Other."

We note that candles and candoliers are at present seen in the windows
of houses on a year-round basis. This fact, alone, does not disqualify
them for classification as festive articles of Chapter 95, HTSUS. We are
satisfied from the evidence presented that the principal use of the
articles is in connection with the Christmas holiday. If practice and
usage in the United States changes to make this class of goods used
principally outside the holiday period, this may result in a different
classification. See Additional U.S. Note 1(a), HTSUS.

**HOLDING**:

The protest should be ALLOWED with respect to the entries for which the
protestant has not abandoned his claim. The entries should be
reliquidated according to the classification as indicated herein.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division