CLA-2 CO:R:C:F 952149 LPF
Mr. David Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, NY 10036
RE: Porcelain figurine of archangel Gabriel; Heading 6913,
HTSUSA, statuettes and other ornamental ceramic articles, of
porcelain; Not heading 9505 festive article.
Dear Mr. Eisen:
This is in response to your letter dated June 9, 1992 on
behalf of Avon Products, Inc. Your inquiry requests the proper
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of a porcelain figurine
representing the archangel Gabriel. You submitted a sample with
your request for a binding ruling.
FACTS:
The article at issue, imported from China and/or Taiwan, is
a figurine depicting the archangel Gabriel, with trumpet. It
measures approximately seven inches in height and is constructed
of white, bisque porcelain. The figurine incorporates the
artist's initials, is dated, and is stamped with the Avon
Nativity Collectibles logo. It is packaged individually and need
not be purchased as part of an entire nativity scene.
ISSUE:
Whether the figurine is classifiable in heading 6913 as a
statuette or other ceramic article or rather in heading 9505 as a
festive article.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 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) 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.
(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....
* * *
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when 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
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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
indicative of classification 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.
First, the figurine is made of non-durable material.
Customs will consider an article, such as the figurine, to be
made of non-durable material since it is not purchased because of
its extreme worth or value (as would be the case with a
decorative, yet costly, piece of art or crystal).
Next, the article's primary function is decorative, as
opposed to, utilitarian. It is apparent, the figurine serves no
useful function besides its role as a decoration.
However, when examining the figurine, as a whole, it is
evident that the article is not traditionally associated or used
with the particular festival of Christmas. When meeting with
Customs, counsel cited the language included in 9505.10.30
providing for, "nativity scenes and figures thereof," as evidence
that individual figurines are classifiable within this
subheading, although they may be imported and purchased
individually and not as an entire "scene." Counsel submits that
Gabriel, by its appearance and recognized association with
Christmas (e.g., as the archangel who stood in the divine
presence and is recognized as the heavenly messenger employed by
God to announce the birth of Jesus to the Virgin Mary), is
classifiable in subheading 9505.10.30. We note, however, that
although Luke 1:31 indicates, specifically, that Gabriel
announced to Mary that she would conceive and bear a son named
Jesus, there is no indication of Gabriel's presence at the
manger, but merely a statement in Luke 2:9 that "the angel of the
Lord," appeared before shepherds in the fields announcing the
birth of Jesus.
It is our position that figurines commonly and traditionally
associated as part of nativity scenes which, upon importation,
are identifiable as being destined for such use, are classifiable
in 9505.10.30. See The Carrington Co., United Geophysical Corp.
v. The United States, 61 CCPA 77, C.A.D. 1126, 496 F. 2d 902
(1974) stating that the classification of an imported article
must rest upon its condition as imported. Although Gabriel has
religious significance, it is not commonly and traditionally
associated as a part of nativity scenes. The Gabriel figurine
must be classified elsewhere.
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Heading 6913 provides for statuettes and other ornamental
ceramic articles. The EN's to 6913 indicate that the heading
includes:
(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 porcelain figurine is ornamental and decorative it
is classifiable in heading 6913. Assuming it is not produced by
professional sculptors nor directly produced from molds made from
original models produced by professional sculptors, the
applicable subheading is 6913.10.5000.
HOLDING:
The porcelain figurine of Gabriel is classifiable in
subheading 6913.10.5000, HTSUSA, as "Statuettes and other
ornamental ceramic articles: Of porcelain or china: Other:
Other." The general column one rate of duty is 9 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division