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HQ 088504


February 3, 1992

CLA- 2 CO:R:C:M 088504 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.10.50; 6913.90.50

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

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