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HQ 961156

February 10, 1998

CLA-2 RR:CR:GC 961156 RC


TARIFF NO.: 9505.90.6000

Arlen T. Epstein, Esq.
Serko & Simon, LLP
One World Trade Center
New York, New York 10048

RE: Glass and Metal Jack-O-Lantern Candleholder with Votive Candle

Dear Mr. Epstein:

This is in response to your letter of November 3, 1997, to the Customs National Commodity Specialists Division, on behalf of Russ Berrie and Company, Inc., requesting the proper tariff classification of glass and Jack-O-Lantern candleholders with votive candles under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter and the submitted sample were forwarded to this office for a direct response.


The "Jack-O-Lantern Candleholder", item number 14849, consists of a glass candleholder, shaped and colored to depict a Jack-O-Lantern. The glass Jack-O-Lantern is held in a decorative metal frame that also serves as a stand. The Jack-O-Lantern and stand are made in China and imported with a votive candle that is made in Taiwan. The components are combined in China prior to importation into the U.S. The item measures approximately three and one quarter inches in height and approximately three and one quarter inches in diameter. A Jack-O-Lantern face is depicted on the orange glass with black paint and framed by the candleholder's metal frame.


Are the "Jack-O-Lantern Candleholders," with candles, properly classified together in heading 9505, HTSUS, or are the candles separately classifiable in heading 3406, HTSUS?


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. GRI 6 provides that the GRIs apply in the same fashion to subheadings within the same heading. The products at issue are classifiable by applying GRI 1, that is, according to the terms of the applicable heading and subheading.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the proper classification of merchandise under the System. Customs believes the ENs should always be consulted. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Heading 3406, HTSUS, provides for "[c]andles, tapers and the like."

Heading 9505, HTSUS, provides for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof." While subheading 9505.10, HTSUS, provides for "[a]rticles for Christmas festivities and parts and accessories thereof," subheading 9505.90, HTSUS, provides for "[o]ther" specified and unspecified articles of the heading.

The ENs to 9505 indicate that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs . . .

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996) and Court No. 96-1271, 96-1279, 1997 U.S. App. LEXIS 21617 (Fed. Cir. August 14, 1997), the court addressed the broad issues of what constitutes an "ornament" and whether or not articles are classifiable as "festive." The court in Midwest classified earthenware Jack-O-Lantern (three-dimensional) shaped pitchers and mugs as festive articles.

It is apparent that the glass and metal components of the "Jack-O-Lantern Candleholders" if considered alone can be classified in heading 9505, HTSUS, as a festive article. See, NY A82484, dated May 3, 1996. At issue is whether the votive candle is classifiable separately in heading 3406, HTSUS, as a candle, or with the "Jack-O-Lantern Candleholder" in heading 9505, HTSUS.

GRI 3(b) directs that:

[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be
classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Here, the Jack-O-Lantern Candleholder contributes most significantly to the bulk, quality, weight, and value to the product as a whole.

Explanatory Note IX to GRI 3(b) states in pertinent part that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only . . . but also those with separable components, provided these components are adapted one to the other and are mutually complementary . . . (emphasis in original).

Explanatory Note X(b) to GRI 3(b) relates that:

For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:
consist of products or articles put up together to meet a particular need or carry out a specific activity . . .

The candleholder and the candle components are mutually complementary, adapted to one another, and put up to meet a particular need or carry out a specific activity designed to be used together. Thus, the goods comprise a GRI 3(b) set, with the Jack-O-Lantern Candleholder imparting the essential character. As such, the Jack-O-Lantern Candleholder and votive candle are classifiable together as a set in heading 9505, HTSUS. These items are similar to the items that Customs ruled upon in NY A82484, May 3, 1996.


The "Jack-O-Lantern Candleholder", item number 14849, is classifiable in subheading 9505.90.6000, HTSUS, the provision for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other," with a general rate of free (1998).


John Durant, Director
Commercial Rulings Division

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