CLA-2 CO:R:C:M 956553 MMC
Ms. Maureen Shoule
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, New York 10038
RE: Illuminated tree-shaped ceramic figurine; DD 896697 revoked;
Headings 6702, 9505, 9405; ENs VIII to GRI 3(b), 67.02, 95.05,
69.13; NYRL 868459; HRLs 953189, 952890, 955527, 955647, 955529,
950041, 088233; GRI 1, 2, 3
Dear Ms. Shoule:
This is in reference to your letter of June 3, 1994,
requesting reconsideration of DD 896697 dated May 4, 1994, in
which you were advised by the Area Director of Customs, Newark,
NJ, of the classification of an illuminated tree-shaped figurine
under the Harmonized Tariff Schedule of the United States
(HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
DD 896697 was published August 17, 1994, in the Customs Bulletin,
Volume 28, Number 33.
FACTS:
The submitted sample, one of four available styles, is a
battery operated 18 inch high illuminated figurine comprised of a
metal wire assembly bound in "glow in the dark" black tape,
iridescent plastic cut outs of ghosts, ghouls and specters, and
an illuminated painted ceramic hollow base, shaped to resemble a
tree trunk. The metal wire assembly is placed in the neck of the
base and resembles the branches of a tree. The iridescent
plastic cut outs attach to the metal assembly creating an
illusion of ghosts in tree branches. The tree-shaped ceramic
base also has ghost and skull figures molded in it. When
illuminated from the inside, it appears to have an eerie glow.
The box in which the article is packaged refers to it as a
Halloween Tree.
In DD 896697, dated May 4, 1994, the article was held to be
classifiable under subheading 6702.90.65, HTSUS, which provides
for Artificial flowers, foliage and fruit and parts thereof, of
ohter materials, other, other. You contend that it is more
specifically classifiable as a festive article or as a ceramic
article.
ISSUE:
Whether the figurine is classifiable as artificial flowers,
foliage, or fruit under the HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1, HTSUS, states in part that for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes.
The headings under consideration are as follows:
6702 Artifical flowers, foliage and fruit and parts
thereof; articles made of artificial flowers,
foliage or fruit
6913 Statuettes and other ornamental ceramic articles
9405 Lamps, and lighting fittings including
searchlights and spotlights and parts thereof, not
elsewhere specified or included; illuminated
signs, illuminated nameplates and the like, having
a permanently fixed light source, and parts
thereof not elsewhere specified or included
9505 Festive, carnival or other entertainment articles,
including magic tricks and practical joke
articles; parts and accessories thereof
Note 3 to Chapter 67, HTSUS, states, in pertinent part,
that:
Heading 6702 does not cover:
...(b) Artifical flowers, foliage or fruit of pottery,
stone, metal, wood or other materials, obtained in one
piece by molding, forging, carving, stamping or other
process, or consisting of parts assembled otherwise
than by binding, gluing, fitting into one another or
similar methods.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be consulted. The ENs, although not dispositive nor legally
binding, provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation
of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128,
(August 23, 1989). EN 67.02, p. 892-893, states, in pertinent
part, that:
This heading covers:
(1) Artifical flowers, foliage and fruit in forms
resembling the natural products,...
This heading does not include:
(e) Artifical flowers, foliage or fruit, of pottery,
stone, metal, wood, etc., obtained in one piece by
moulding, forging, carving, stamping or other
process,...
(f) Wire simply cut to length and covered with textile
material, paper, etc., for making stems for artificial
flowers, etc.
We are of the opinion that heading 6702, HTSUS, does not
describe the article in question. The article is made of ceramic
and wire wrapped in tape. Therefore, Note 3 to Chapter 67,
HTSUS, excludes it from classification in Chapter 67, HTSUS.
Furthermore, the article is not a form which resembles a natural
tree. Trees do not have skulls and ghosts surrounding them nor
are they illuminated from the inside. Therefore, the figurine
is not classifiable under heading 6702, HTSUS.
For a similar analysis see NYRL 868459, dated December 2,
1991, which classified a wooden tree with ornaments. Headings
which were listed as describing the article, were 9505, which
provides for festive articles, and 4420, HTSUS, which provides
for other wooden articles. Heading 6702, HTSUS, was not
considered.
EN 95.05 states, in pertinent part, that:
This 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) Decorations 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.
Customs understands this EN to indicate that heading 9505,
HTSUS, provides for articles exemplified in the ENs and articles
ejusdem generis to them. Characteristics indicative, but not
conclusive, of a festive article are, if the article as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic value
(e.g., paper, cardboard, metal foil, glass fiber, plastic,
wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
3. is traditionally associated or used with a particular
festival (e.g., stockings, and tree ornaments for Christmas,
decorative eggs for Easter).
An article's satisfaction of these three criteria is an
indication that it is classifiable as a festive article. The
motif of an article is not dispositive of its classification and
consequently, does not transform an item into a festive article
for tariff purposes. An article, as a whole, must be
specifically affiliated with a particular festival, and not
merely contain the motif of the festival. See Headquarters
Ruling Letter (HRL) 953189 dated April 15, 1993, and HRL 952890
dated March 16, 1993.
Customs is of the opinion that the subject figurine
functions primarily as decoration, and is not purchased for its
extreme worth or value. However, we find that while the box
refers to Halloween, the figurine is not traditionally associated
with that particular festival.
Ghosts, ghouls, and specters are not the same types of
articles cited in the ENs to heading 9505, HTSUS, as examples of
traditional, festive articles, nor do they particularly relate to
Halloween. Ghosts, ghouls, and specters are often the subject of
mythology, history, plays, movies, and cartoons bearing no
significance to a festival or holiday. For example, a variety of
ghosts are the subject of the movie "Ghostbusters" and a friendly
ghost is the subject of the cartoon, "Casper the Friendly Ghost".
Relative to their representation of the after life, ghosts often
represent the physic or paranormal. Therefore, the figurine is
not classifiable as a festive article.
This is consistent with our holding in HRL 955527 dated
March 1, 1994, wherein a standing witch with broom and a seagrass
scarecrow were classified other than as festive articles. In
that decision, Customs explained that witches and scarecrows are
not associated with a particular festival but in part, are
associated with, respectively, mythology, history, and a
bountiful harvest. See also: HRL 955647 dated March 15, 1994,
and HRL 955529 dated March 16, 1994.
Inasmuch as no provision in the HTSUS describes the
illuminated figurine in its entirety, it is considered a
composite good and cannot be classified according to GRI 1.
When goods cannot be classified by applying GRI 1, and if
the headings and legal notes do not otherwise require, the
remaining GRI's are applied. GRI 2(a) states in pertinent part
that:
Any reference in a heading to an article shall be taken to
include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete or
unfinished article has the essential character of the
complete or finished article. It shall also include a
reference to that article complete or finished (or falling
to be classified as complete or finished by virtue of this
rule), entered unassembled or disassembled.
It is our understanding that the article is imported
finished and complete, therefore GRI 2(a) does not apply.
GRI 2 (b) states, in pertinent part, that any reference in a
heading to a material or substance shall be taken to include a
reference to mixtures or combinations of that material or
substance with other materials or substances. The classification
of goods consisting of more than one material or substance shall
be according to the principles of GRI 3.
GRI 3 states that when, by application of rule 2(b) or for
any other reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific
description shall be preferred to headings providing a more
general description. However, when two or more headings
each refer to part only of the materials or substances
contained in mixed or composite goods or to part only of the
items in a set put up for retail sale, those headings are to
be regarded as equally specific in relation to those goods,
even if one of them gives a more complete or precise
description of the goods.
The two remaining headings under consideration, 9405, HTSUS,
which describes the lighting component and 6913, HTSUS, which
describes the porcelain base, each describe part only of the
materials used to make the article in question. Therefore, the
headings are considered equally specific and GRI 3(b) must be
applied.
GRI 3(b) states, in pertinent part, that:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods put
up 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.
EN VIII to GRI 3(b), pg. 4, 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.
We find that the ceramic base imparts the essential
character of this article. EN 69.13, p. 923, states, in
pertinent part, that:
This heading covers:
(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, haute or bas
reliefs, and other figures for interior or
exterior decoration; ornaments (including those
forming parts of clock sets) for mantelpieces,
shelves, etc., (animals, symbolic or allegorical
figures, etc.); sporting or art trophies; wall
ornaments incorporating fittings for hanging
(plaques, trays, plates); medallions; firescreens;
artificial flowers, fruit, leaves, etc.; wreathes
and similar ornaments for tombs; kick-knacks for
shelves or domestic display-cabinets.
We are of the opinion that the tree figurine is wholly
ornamental, because its illumination is minimal, it has little if
any utility and its other features serve no purpose. It is
greater in bulk, weight or value than any other portion of the
article. It appears that the lighting function simply enhances
the already decorative nature of the article. Therefore, the
article will not be purchased, primarily, for its lighting
characteristics.
This finding is consistent with HRL 950041, dated October
31, 1991, which held that the lighting component in the "Little
Village Collection" merely enhanced the already decorative nature
of the article and was not its essential character. Likewise, in
HRL 088233, dated May 1, 1991, we held that the lighting portion
of a mirror merely enhanced the mirror's function and was not the
article's essential character. See also, HRL 953189, dated April
15, 1993. We find that the illuminated tree-shaped figurine is
classifiable in heading 6913, HTSUS, as an ornamental ceramic
article.
Classification in the appropriate subheading at the six
digit level requires a determination of the materials used to
make the accessories. The legal notes to chapter 69, HTSUS,
delineate which chemical tests may be performed to determine
whether an article is ceramic, porcelain, china, bone china, or
earthenware for tariff purposes. When performed, these tests use
a sample article which is often destroyed during testing.
However, in some cases specifications and information regarding
the manufacturing process may also be acceptable to determine the
materials used to create the article in question. Based on the
facts presented, it is Customs understanding that the article is
neither porcelain or china and therefore, is classifiable under
subheading 6913.90, HTSUS.
Classification in the appropriate subheading at the eight
digit level depends on whether the article's creator is
considered a professional sculptor for tariff purposes. A
professional artist and a work of art, for tariff purposes, must
meet strict parameters. To be considered a professional artist,
a person must have graduated from a course at a recognized school
of art, or be recognized in art circles as a professional artist
by acceptance of his or her works in public exhibitions limited
to the free fine arts. In addition to being considered a
professional artist, each article produced by that artist must be
original in design, conception, and execution.
Because of the minimal value of the article, we do not
believe that the creator of the article meets the definition of a
professional sculptor for tariff purposes. Therefore, the
article is classifiable under subheading 6913.90.50, HTSUS, which
provides for Statuettes and other ornamental ceramic articles:
Other: Other: Other.
HOLDING:
The subject illuminated decorative article is classifiable
in subheading 6913.90.50, HTSUS. The general column one rate of
duty is 7 percent ad valorem.
DD 896697 dated May 4, 1994, is hereby revoked. In
accordance with section 625, this ruling will become effective 60
days after its publication in the Customs Bulletin. Publication
of rulings or decisions pursuant to section 625 does not
constitute a change of practice or position in accordance with
section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division