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HQ 952149


March 17, 1993

CLA-2 CO:R:C:F 952149 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.10.5000

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.

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

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.

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

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