The tariff classification of ceramic incense burner sets from China

N341526 August 6, 2024 CLA-2-69:OT:RR:NC:N4:422 CATEGORY: Classification TARIFF NO.: 6912.00.5000; 9817.95.05 Ms. Mika McLafferty Sandler, Travis & Rosenberg, P.A. 675 Third Avenue, Ste 2425New York, NY 10017 RE:  The tariff classification of ceramic incense burner sets from China Dear Ms. McLafferty: In your letter dated July 22, 2024, on behalf of your client, 1616 Holdings, Inc., you requested a tariff classification ruling. Samples and photographs were submitted.  This office will retain the samples. The items are 11-piece cone incense burner kits.  The three kits are Wispy Hollow Witch Cauldron, Wispy Hollow Mystical Moon, and Wispy Hollow Spooky Skull, Style #9136032. You indicated that all three ceramic incense burner kits will be imported and sold separately. The items will be sold and marketed during the Halloween season. Each kit contains 1 ceramic stoneware incense burner and 10 scented cones.  The cones are 60% coco shell powder, 15% guar gum, 15% laham bark, and 10% fragrance.  You have indicated that each of the ceramic holders weighs approximately between 2.2 - 4.2 ounces depending on the ceramic holder.  Each incense cone weighs approximately 0.3 ounces. In use, the scented cone is placed in the center of the ceramic burner.  The user lights the tip of the incense cone until it flames and is glowing.  The user blows out the flame, and the cone will emit the scent. The Wispy Hollow Witch Cauldron kit contains 1 black stoneware ceramic incense burner and 10 vanilla-scented incense cones.  The incense burner is a three-dimensional representation of a black witch’s cauldron. The cauldron measures approximately 2 9/16 inches high by 3 ¼  inches wide by 2 ½ inches long as measured at its widest points. The vanilla-scented cones each measure approximately 1.18 inches high. The Wispy Hollow Mystical Moon kit contains 1 purple stoneware ceramic incense burner and 10 lavender-scented incense cones.  The incense burner is shaped as a half moon with 7 cut-out star designs.  The half moon measures approximately 3 ¼ inches high by 3 3/8 inches wide by 1 ¼ inches long as measured at its widest points.  The lavender-scented cones each measure approximately 1.18 inches high. The Wispy Hollow Spooky Skull kit contains 1 white stoneware ceramic incense burner and 10 cinnamon-scented incense cones.  The incense burner is a three-dimensional representation of a skull.  The skull measures approximately 3 inches high by 2.5 inches wide by 1.75 inches long as measured at its widest points.  The cinnamon-scented cones each measure approximately 1.18 inches high. The stoneware ceramic incense burners and the scented incense cones are composite goods comprised of different materials that are classifiable in different headings. Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRIs) taken in order. GRI 3(b) of the HTSUS provides, in relevant part, states that composite goods which cannot be classified by reference to GRI 3(a) shall be classified as if they consisted of the material or component which gives them their essential character. These items are packaged together for retail sale at the time of importation. They are classified together as a set in the tariff provision applicable to the article or articles that impart the essential character. The stoneware ceramic incense burners accounts for the vast majority of the bulk, weight, and value for the incense burner kits. Therefore, the essential character of the 11-piece incense burner kits is the stoneware ceramic incense holder. In accordance with GRI 3(b), the 11-piece incense burner kits will be classified in heading 6912, which provides for Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.The applicable subheading for the Wispy Hollow Witch Cauldron, Wispy Hollow Mystical Moon, and Wispy Hollow Spooky Skull, Style #9136032 will be 6912.00.5000, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other.”  The rate of duty will be 6 percent ad valorem. You also suggest that all three styles are also eligible for free duty treatment in subheading 9817.95.05, HTSUS, as three-dimensional representations of symbols or motifs clearly associated with a specific holiday in the United States and, therefore, is eligible for free duty treatment in subheading 9817.95.05, HTSUS.  You further indicate that the half-shaped moon with stars qualifies for subheading 9817.95.05, HTSUS, and state that CBP has recognized moons as a festive motif or symbol associated with Halloween per NY ruling N333898 dated July 18, 2023. This office does not agree.  The half-shaped moon with stars is not recognized as a festive motif or symbol associated with Halloween or any particular holiday. Subheading 9817.95.05, HTSUS, provides for utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.  The generic half-shaped moon with stars is not eligible for free duty treatment in 9817.95.05, HTSUS. Therefore, the Wispy Hollow Mystical Moon kit, Style#9136032 is precluded from classification in subheading 9817.95.05, HTSUS. Furthermore, NY ruling N33898 dated July 18, 2023, classified a tabletop decoration in subheading 9505.90.6000, HTSUS.  The merchandise consists of a free-standing, illuminated spherical tabletop decoration depicting a full moon and a printed silhouette image of a witch riding her broomstick. The article in ruling N333898 was not just a moon by itself. A moon is not a recognized festive motif associated with a holiday. The Witch Cauldron and the Spooky Skull incorporates a motif that is associated with Halloween.  Halloween is a recognized holiday.  See Park B. Smith Ltd. v. United States, 347 F.3d 922, 929 (CAFC, October 21, 2003). As such, the items also meet the terms of subheading 9817.95.05, as it is a utilitarian article that is in the form of three-dimensional representation of a symbol or motif that is clearly associated with a specific holiday in the United States. U.S. Note 1 to Chapter 98, HTSUS, states:  "The provisions of this chapter are not subject to the rule of relative specificity in general rule of interpretation 3(a).Any article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and of any applicable regulations are met."  Pursuant to U.S. Note 1 to Chapter 98, HTSUS, the items are correctly classified therein. However, both subheading 9817.95.05 and subheading 6912.00.5000 must be reported for statistical purposes regarding the items, according to Statistical Note 1(a) of Chapter 98 Subchapter XVII. The applicable subheading for the Wispy Hollow Witch Cauldron and the Wispy Hollow Spooky Skull, Style #9136032, will be 9817.95.05, HTSUS, which provides for articles classifiable in subheadings 6912.00.…the foregoing meeting the descriptions set forth below: utilitarian articles in the form of a three-dimensional representation of a symbol or motif clearly associated with a specific holiday in the United States.  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 at https://hts.usitc.gov/currentThe holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP. This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection 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, please contact National Import Specialist Dana L. Giammanco at dana.l.giammanco@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division