CLA-2-34:OT:RR:NC:N2:237
Mr. Tony To
Monday Beauty Limited
3013-3016, 30/F Paul Y Centre
51 Hung To Road
Kwun Tong, Hong Kong
China
RE: Tariff classification of Item No. 120631 Musical Birthday Candles from China.
Dear Mr. To:
In your letter received here on September 11, 2012 you requested a tariff classification ruling. You provided illustrated literature and a sample for our review.
Item No. 120631 Musical Birthday Candles are described as wax candles accompanied by a plastic candle holder containing an electrical device that plays “HAPPY BIRTHDAY”. The sample consists of 4 small white petroleum wax candles containing fiber wicks and a small pink plastic candle holder. Each candle measures 3" (H) x 1/4" (W). Each is decorated with a colored wax spiral (pink, yellow, violet or red). One candle comes already inserted in the candle holder. The holder contains a printed circuit board, battery and speaker. The tapered candle holder measures 2" (H) x 3/8 to 1/2" (W). The musical device is activated by holding the base and turning a silver metallic band around its neck clockwise. The music is stopped by turning the band counterclockwise. The holder is designed to allow upright insertion and safe lighting on top of a birthday cake. The holder is intended for reuse with candle refills. The 4 candles and holder are retail packaged in a clear blister pack with printed paperboard backing and warning labels on the front and back. The musical candle holder imparts the essential character of the set.
Classification of products under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 states, in pertinent part, that classification shall be determined according to the terms of the headings or any relevant chapter or section notes. Goods that cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's taken in order. GRI 3 states, in pertinent part: When by application of Rule 2 (b) [ goods of more than one material or substance ] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows: (b) Mixtures, 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) [ which requires that goods be classified, if possible, under the more specific of the competing provisions ], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. The Explanatory Notes to the HTSUS constitute the official interpretation of the tariff at the international level. Explanatory Note (X) to GRI 3(b) provides: For the purpose of this Rule, the terms "goods put up in sets for retail sale" shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking. For the sets mentioned above, the classification is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character. Item No. 120631 Musical Birthday Candles set, consisting of a musical candle holder and 4 wax candles, meets the criteria of (a), (b) and (c). Under criteria (a), the set consist of articles classifiable in different headings, namely, the musical candle holder classifiable under subheading 9505.90.4000, HTSUS, for festive articles and the candles classifiable under 3406.00.0000, HTSUS, for wax candles. Under criteria (b), the set consist of articles put together to meet a particular need or carry out a specific activity, namely, to decorate and illuminate a birthday cake. Under criteria (c), the articles are put up in a manner suitable for sale directly to users without repacking, namely, both candles and holder are retail packaged together in a clear blister pack.
For sets mentioned above, the classification is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character. In this case, the reusable musical candle holder intended as a birthday cake decoration imparts the essential character of the set.
The applicable subheading for Item No. 120631 Musical Birthday Candles retail packaged together with the musical candle holder will be 9505.90.4000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof. The rate of duty will be Free.
Candles from China may be subject to antidumping duties under the Antidumping Duty Order on Petroleum Wax Candles from the People’s Republic of China. The Order is administered by the U.S. Department of Commerce (DOC), Import Administration. The DOC has determined that three types of candles would be excluded from the scope of the order: birthday candles, utility candles, and figurine candles. The DOC has determined that birthday candles are typically small, thin, pillar-shaped candles that range from 2 inches to 3.5 inches in height, 0.18 inch to 0.25 inch in width, and packaged in quantities of 10 to 24; that birthday numerical candles are candles that are in the shape of numbers that typically range from 2 to 4 inches in height; that utility candles are typically white in color, 5 inches long, 0.75 inch in diameter, and packaged in quantities of two or more; and that a figurine candle is a candle that is in the shape of a human, animal, or deity. You may contact the DOC for a scope ruling at 14th St. and Constitution Ave. NW, Washington, DC 20230, by phone (202) 482-3148 or website: www.ia.ita.doc.gov (click on “Import Administration” - click on “Scope Information” - click on “How to request a Scope Ruling”. You may also click on “Petroleum wax Candles” to view: Final scope Rulings issued on Petroleum Wax Candles).
Your product may be subject to prohibition and recall under the laws and regulations administered by the CPSC. You are advised to contact the CPSC to determine if your merchandise complies with pertinent safety standards and regulations. Import compliance information may be obtained by contacting the Office of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda MD 20814-4408, by calling (301) 504-7912 or by e-mail contact through their website at www.cpsc.gov.
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 Frank Cantone at (646) 733-3038.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division