The tariff classification of battery operated LED candles from China

N318084 April 1, 2021 CLA-2-94:OT:RR:NC:N4:410 CATEGORY: Classification TARIFF NO.: 9405.40.8440; 9903.88.03 Mr. Michael Mason MSR Imports, Inc. Airport Circle Industrial Park Pennsauken, NJ 08109 RE: The tariff classification of battery operated LED candles from China Dear Mr. Mason: In your letter dated March 4, 2021, you requested a tariff classification ruling. The item under consideration is identified as the Battery Operated LED Decorative Candles, Item 6837W and Item 6838W. Based on the information and pictures that you have provided, Item 6837W and Item 6838W are identical in construction. They each consist of a pillar-shaped candle that is hollowed out at the top and an LED lamp housed inside. The candles measure measures 6" in height and 3 inches in diameter. The candles are equipped with a switch on the bottom which turns the candle on and off. Item 6837W features a Christmas-themed decorative sticker depicting a snowman, with holly berry on its hat, alongside a decorated Christmas tree which is wrapped around the candle. Item 6838W features a Halloween-themed decorative sticker depicting a set of three Jack-O-Lanterns, bats, and a "Happy Halloween" banner which is wrapped around the candle. In your request, you proposed that Item 6837W should be classified under subheading 9505.10.2500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Christmas ornaments: Other: Other”; and that Item 6838W should be classified under 9505.90.6000, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” Regardless of motif, utilitarian functional articles are excluded from CH 95 by chapter note 1(w). The Explanatory Notes to Chapter 95, HTSUS, provide in relevant part: The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen. HQ H003357, HQ H011693, N302488, N305916, etc. Customs has consistently classified flameless or LED candles as lamps under 9405.40 which provides for “Lamps … and parts thereof not elsewhere specified or included: Other electric lamps and lighting fittings”. Furthermore, the courts affirmed that similar LED candles were appropriately classified under heading 9405. Please refer to The Gerson Company vs. United States, Court of International Trade Slip Op. 17-96, dated August 2, 2017, and U.S. Court of Appeals for the Federal Circuit, Appeal No. 18-1011, dated August 6, 2018. The applicable subheading for the subject Battery Operated LED Decorative Candles will be 9405.40.8440, HTSUS, which provides for “Lamps and lighting fittings…: Other electric lamps and lighting fittings: Other: Other.” The rate of duty will be 3.9 percent ad valorem. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9405.40.8440, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 9405.40.8440, HTSUS, listed above. The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively. The tariff is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Notice cited above and the applicable Chapter 99 subheading. 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 the World Wide Web at https://hts.usitc.gov/current. 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 Michael Chen at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division