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HQ 959897




July 17, 1997

CLA-2 RR:TC:FC 959897 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.10.5000

Ms. Michele Smith
Sears Merchandise Group
BC 204A
3333 Beverly Road
Hoffman Estates, Illinois 60179

RE: Classification of "Porc. Church W/Lite" (Stock No. 97825); Festive Article

Dear Ms. Smith:

This is in further response to your request of September 17, 1996, for reconsideration of a tariff pre-classification with respect to a "Porc. Church W/Lite" (Stock No. 97825). In a letter addressed to you dated April 11, 1997, we stating that the article at issue may be classified in heading 6913, Harmonized Tariff Schedule of the United States (HTSUSA), the provision for statuettes and other ornamental ceramic articles, or heading 9505, HTSUSA, the provision for festive articles. With respect to possible classification in heading 9505, we invited you to submit evidence indicating traditional use of the subject item. During a telephone conversation in May, 1997, you stated that the "Porc. Church W/Lite" did not belong to any particular mini village collection. In a letter dated May 15, 1997, you merely stated that the "church can be purchased by the customer to add to their [sic] display with other villages and buildings they have at home."

FACTS:

The article at issue consists of a single off-white, lighted porcelain church with snow on its roof, with a wreath decorating the front doors. The item is packaged for retail in a brown box featuring a depiction of the church against a red background. The box makes no overt reference to the festival of Christmas.

ISSUE:

Whether the lighted porcelain church is classified in heading 6913, HTSUSA, the provision for statuettes and other ornamental ceramic articles, of porcelain or in heading 9505, HTSUSA, as festive articles.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) 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 GRIs.

Heading 9505, HTSUSA, provides for, among other items, festive, carnival, and other entertainment articles. The EN to 9505 indicates that the heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable 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).

Articles classifiable in heading 9505, HTSUSA, tend to serve no other function than decoration. Further, the motif of an item is not dispositive of its classification and, consequently, does not transform an item into a festive article. In general, lighted ornamental porcelain articles are not traditionally associated or used with a particular festival. Nevertheless, Customs has held that certain collections of mini village buildings are festive articles because they are traditionally associated with the festival of Christmas. See, Headquarters Ruling Letter (HRL) 958239 (March 25, 1996), HRL 958240 (March 26, 1996), HRL 958259 (March 25, 1996), HRL 958747 (September 20, 1996). Unlike the mini village collections Customs has ruled upon in the above-cited cases, the instant church is a single building, not part of an identifiable village collection. Mere marketing of a product during a particular season does not prove that the product is in fact "traditionally associated or used with a particular festival." Yet the packaging of the instant item does not even make reference to Christmas or otherwise indicate that it is designed for use as a festive article.

The instant porcelain light, depicting a single church building, is decorative and perhaps even seasonal, given the snow motif and the door wreath. However, we find that it is not traditionally associated or used with a particular festival. The importer has not met the burden of proof to establish that the instant item meets the criteria for classification as festive.

HOLDING:

The lighted porcelain church is classified in subheading 6913.10.5000, HTSUSA, the provision for "Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other." The applicable rate of duty is free.

Sincerely,

John Durant, Director
Tariff Classification

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