The tariff classification of a decorative article from China

N147277 February 15, 2011 CLA-2-83:OT:RR:NC:N1:121 CATEGORY: Classification TARIFF NO.: 8306.29.0000 Mr. Joseph Stinson Liss Global, Inc. 7746 Dungan Road Philadelphia, PA 19111 RE: The tariff classification of a decorative article from China Dear Mr. Stinson: In your letter dated February 3, 2010, you requested a tariff classification ruling. The submitted sample will be returned per your request. The merchandise under consideration is described as a Spider Candle Holder, Liss item number 9014457, manufacturer item number 80056-INNER-2. It is made of base metal and looks like a whimsical spider. The product consists of a spherical-shaped purple body, a black and orange witch’s hat and eight purple wire legs upon which it stands. The body features painted metal eyes, a wire mouth and painted fangs. The hat is permanently attached to the top, front portion of the body and features several star-shaped cutouts. The product measures approximately 7 inches tall by 7-1/2 inches wide by 5 inches deep overall with a 3 inch diameter opening at the top. You indicate in your letter that it is a candle holder to be sold for Halloween. You have proposed classification for this product in subheading 9405.50.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for non-electrical lamps and lighting fittings. This article, however, has a concave shape which is not suitable for safely supporting a burning candle; in addition, any candle inserted would illuminate the cutouts in the spider’s hat for a decorative effect, not provide light to the surrounding area. New York Merchandise Co., Inc. v. United States, Court No. 75-2-00514 (3-12-81) declared that “[a]rticles which utilize light purely for its decorative effect and to furnish illumination to the articles themselves, and do not have any substantial capacity for illuminating the surrounding area, are not illuminating articles and consequently are not lamps within the common meaning of the term.” It was stated that “[t]he function of the lights is to enhance the decorative effect of the articles… Any lighting of the surrounding space is only incidental to the use of the importations as decorative articles.” Consequently, decorations are excluded from heading 9405, HTSUS, per Chapter 94, Note 1(l). Additionally, the article appears to be both decorative and utilitarian since it is capable of holding numerous articles, rather than safely supporting a candle. Articles that have either a primary or secondary utilitarian function are excluded from classification as festive articles in Chapter 95 per Explanatory Note 95.05(S) and Note 1(v) to Chapter 95. See Headquarter ruling letters H017693 and H015087 regarding “festive” candle holders. The applicable subheading for the base metal “Spider Candle Holder” will be 8306.29.0000, HTSUS, which provides for bells, gongs and the like, nonelectric, of base metal…statuettes and other ornaments, and parts thereof, other. The rate of duty will be free. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Barbara Kaiser at (646) 733-3024. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division