The tariff classification of an LED candle from Taiwan.

N113679 July 19, 2010 CLA-2-94:OT:RR:NC:1:110 CATEGORY: Classification TARIFF NO.: 9405.40.8000 Ms. Martha De Castro Bed Bath & Beyond 650 Liberty Avenue Union, NJ 07083 RE: The tariff classification of an LED candle from Taiwan. Dear Ms. De Castro: In your letter dated June 8, 2010 you requested a tariff classification ruling. The merchandise under consideration is the Be Witched LED Candle, item number 17386654. A sample was submitted with your ruling request and will be returned to you. The submitted sample is a pillar-style candle made of acrylic, and measures approximately 7 inches high by 3½ inches in diameter. It features an LED (light emitting diode) lamp designed to simulate a candle flame that is activated by means of a two-position slide switch on the bottom of the candle, and is powered by 3 “AA” batteries. The candle is decorated with the image of a woman wearing an evening gown and a pointed hat, with the words “Be Witching” spelled across her dress. In your ruling request you suggest classification of the Be Witched LED Candle in 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), as a festive, carnival, or entertainment article. However, despite the festive claim, the line drawing motif is hardly witch-like. The line drawing depicts a woman merely dressed up in period clothing. She doesn’t resemble a Halloween witch; there is no broom; there is no black cat; there is no clear association with Halloween. The words “Be Witching” and that imagery would not restrict the article only to Halloween use. Moreover, the LED candle is designed to produce an illuminated candle effect. The article is excluded by Explanatory Note (A) to Heading 95.05, which excludes “articles that contain a festive design, decoration, emblem or motif and have a utilitarian function…” The applicable subheading for the Be Witched LED Candle, item number, 17386654, will be 9405.40.8000, HTSUS, which provides for “Lamps and lighting fittings…: Other electric lamps and lighting fittings: Other.” The general rate of duty will be 3.9 percent ad valorem. 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 Thomas Campanelli at (646) 733-3016. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division