CLA- 2 CO:R:C:M 088504 NLP
Area Director of Customs
Room 137
110 South Fourth Street
Minneapolis, MN 55401
RE: Protest No. 3501-90-000048; statuette or other ornamental
ceramic figures; festive articles; heading 9505; HRL 087131
Dear Area Director:
On October 12, 1990, we forwarded Headquarters Ruling Letter
(HRL) 087131 to you in response to Protest and Application for
Further Review No. 3501-90-000048, which concerned the
classification of ornamental porcelain and earthenware statuettes
and figures under the Harmonized Tariff Schedule of the United
States (HTSUS). Shortly thereafter, we determined that HRL
087131 needed to be modified. At that time, as you had not acted
on the protest by issuing a Customs Form 19, we requested that
you suspend your action on the protest while we reviewed the
classification issues. This response reflects our position on
Protest and Application for Further Review No. 3501-90-000048.
FACTS:
The merchandise at issue involves two groups of ornamental
ceramic ware depicting buildings, miscellaneous accessories and
figurines. The first group is called the Heritage Village
Collection. Included in this collection is the Dickens Village,
the Alpine Village, the New England Village, Christmas in the
City and the Little Town of Bethlehem Collection. The pieces of
these collections are made of porcelain. When the pieces of the
collections are put together they depict villages in the winter
season. The second group is called the Snow Village Collection
and its pieces are made of earthenware. When the pieces of this
collection are put together they also portray a village during
the winter. The pieces in both collections range from churches
to candy stores to snow laden homes. Additional pieces consists
of assorted trees and plants and a variety of figurines. An
electric switch cord and bulb is included with each
house/building so that it may be illuminated.
Upon importation the pieces in the Heritage Village
Collection were classified under subheading 6914.10.00, HTSUS,
which provides for other ceramic articles, of porcelain. The
Snow Village Collection was classified in subheading 6914.90.00,
HTSUS, which provides for other ceramic articles, other. The
protestant maintains that the items are classifiable under
subheading 9505.10.50, HTSUS, which provides for festive,
carnival or other entertainment articles, articles for Christmas
festivities and parts and accessories thereof, other articles for
Christmas festivities. The basis for this position is that the
pieces in each collection are marketed, displayed and sold for
use during the Christmas season. In addition, when the items are
displayed together, the scene gives the impression, when viewed,
of a festive atmosphere inherent in the celebration of Christmas.
Alternatively, the protestant claims that the Snow Village
Collection is classifiable in subheading 6913.90.50, HTSUS, which
provides for statuettes and other ornamental ceramic articles,
other than of porcelain or china, other, other.
ISSUE:
Whether the porcelain and earthenware articles in the
Heritage Village Collection and the Snow Village Collection are
classified in Heading 9505, HTSUS, as festive articles; or rather
in Heading 6913, HTSUSA, as statuettes and other ornamental
ceramic articles?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 9505, HTSUS, provides for, inter alia, festive,
carnival or other entertainment articles. The Explanatory Notes
(ENs) to the Harmonized Commodity Description and Coding System,
although not dispositive, facilitate classification under the
HTSUS by offering guidance in understanding the scope of the
headings and the GRI's. The ENs to heading 9505, page 1590,
indicate that the heading covers:
(A) Festive, carnival or other entertainment articles,
which in view of their intended use are generally made
of non-durable material. They include:
(1) Decoration such as festoons, garlands,
Chinese lanterns, etc., as well as various
decorative articles made of paper, metal, foil,
glass fibre, etc., for Christmas trees (e.g.,
tinsel, stars, icicles), artificial snow,
coloured balls, bells, lanterns, etc. Cake and
other decorations (e.g., animals, flags) which are
traditionally associated with a particular
festival are also classified here.
(2) Articles traditionally used at Christmas
festivities, e.g., artificial Christmas trees
(these are sometimes of the folding type),
nativity scenes, Christmas crackers, Christmas
stockings, imitation yule logs.
Articles classifiable in heading 9505, HTSUS, tend to serve no
other function than decoration.
In addition, heading 9505, HTSUS, is generally regarded as a
use provision. Hence, Additional U.S. Rule of Interpretation
1(a) must be reviewed. Additional U.S. Rule of Interpretation
1(a) indicates that:
In the absence of special language or context
which otherwise requires--
(a) a tariff classification controlled by use
(other than actual use) is to be determined in
accordance with the use in the United States at,
or immediately prior to the date of importation,
of goods of that class or kind to which the
imported goods belong, and the controlling use
is the principal use.
Although the subject articles are decorative, porcelain
and earthenware figures as a class or kind of merchandise are not
specifically festival related. Porcelain and earthenware figures
are used throughout the year and come in a wide variety of
motifs. Accordingly, it is Customs position that the figures are
not classifiable as festive articles in heading 9505, HTSUS. In
Headquarters Ruling Letter (HRL) 950041, dated October 31, 1991,
and in HRL 950413, dated October 10, 1991, porcelain articles
depicting a holiday motif were not classified as festive articles
but as ornamental ceramic articles in subheading 6913.10.50,
HTSUS. Likewise, the subject articles must be classified
elsewhere.
Heading 6913, HTSUS, provides for statuettes and other
ornamental ceramic articles. The EN 69.13, page 923, provides
that heading 6913, HTSUS, covers the following:
(A) Articles which have no utility value but are wholly
ornamental, and articles whose only usefulness is to
support or contain other decorative articles or to add
to their decorative effect, e.g.:
(1) Statues, statuettes, busts, haut or bas reliefs,
and other figures for interior or exterior decoration;
ornaments (including those forming parts of clock
sets) for mantelpieces, shelves, etc.,....
Since the subject figures are ornamental and decorative they
are classified in heading 6913, HTSUS. Inasmuch as the pieces in
the Heritage Collection are made of porcelain, they are
classified in subheading 6913.10.50, HTSUS, which provides for
statuettes and other ornamental ceramic articles, of porcelain,
other, other. The pieces in the Snow Village Collection are made
of earthenware and are classified in subheading 6913.90.50,
HTSUS, which provides for statuettes and other ornamental
articles, other than of porcelain or china, other, other.
In addition, in the Heritage Village Collection, some of the
pieces are sold in sets. For example, in the New England Village
Collection, there is a set of seven buildings depicting a New
England village. GRI 3(b) provides for the classification of
goods put up in sets for retail sale. The rule states in
pertinent part:
(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), shall be classified as if they consisted
of the material or component which gives them their
essential character, insofar as this criterion is
applicable.
Explanatory Note (X) (page 4) to GRI 3(b) states that the
term "goods put up in sets for retail sale" means 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 up 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.
In the instant case, the pieces that are imported in sets
qualify as sets within the meaning of GRI 3(b). These groupings
consists of products that are classifiable in two different
headings. As stated above the porcelain articles are classified
in heading 6913, HTSUS. Heading 9405, HTSUSA, provides for,
inter alia, lamps and lighting fittings. Subheading 9405.40,
HTSUSA, provides for other electric lamps and lighting fittings.
The light cord with a bulb is considered a light fitting and is
classified in subheading 9405.40, HTSUSA.
Furthermore, the sets contain miscellaneous accessories and
figures which are intended to be used together to ornament the
home and to portray a complete village setting. The sets are put
up in a manner suitable for sale directly to users without
repacking.
We must now determined the essential character of the sets
in accordance with GRI 3(b). Explanatory Note VIII (page 4) to
GRI 3(b) states that:
The factor which determines essential character will vary
as between different kinds of goods. It may, for example,
be determined by the nature of the material or component,
its bulk, quantity, weight or value, or by the role of a
constituent material in relation to the use of the goods.
In this case, the porcelain articles represent the essential
character of the sets. The porcelain articles represent the
greater bulk, weight and value. They are also the constituent
materials in the sets. Therefore, since the porcelain articles
represent the essential character, the sets are classified in
subheading 6913.10.50, HTSUS.
HOLDING:
The Snow Village Collection is classified in subheading
6913.90.50, HTSUS. The Heritage Village Collections are also
classified in subheading 6913.10.50, HTSUS.
The protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
HRL 087131, dated October 12, 1990, is modified by this
ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division