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HQ 959308

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November 20, 1997

CLA-2 RR:CR:GC 959308 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6810.99.00

Port Director of Customs
Hemisphere Center
Routes 1& 9 South, Room 200
Newark, New Jersey 07114

RE: IA 20/96; Sculptstone Cow Statuette

Dear Port Director:

This is in response to a May 13, 1996, memorandum (CLA-2-NEW:TCBII:204) from the Process Owner, Trade Compliance Division, New York, Newark Area, to the Director of the National Commodity Specialist Division, requesting internal advice concerning the classification of a sculptstone cow statuette under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted with the request. In preparing the decision consideration was given to the views of counsel for the importer as expressed in a June 17, 1997, meeting and a June 25, 1997, supplemental submission.

FACTS:

The subject article, identified as item number 14311, is a sculptstone statuette depicting a Holstein cow. The article measures 2«" high and approximately 3 " long. The statuette has been painted white with irregular black patches. It has pink shadowing on the inside of the ears, mouth, snout and utter. A bell is attached around the cow's neck.

On page 9 of the Russ Berrie and Company, Inc., "Wishes and Whimys" catalog the article is depicted under the title "Cow Mania." The particular article is identified as "Cow Belles." According to the catalog the article can be purchased in different designs/ stances in assortments. The box is labeled "Cowbelles collectible figurine dancing cow." All articles in the catalog are individually gift boxed.

Counsel asserts that the statuette is classifiable under the 1996 subheading 9503.41.0030, HTSUS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof: Stuffed toys and parts and accessories thereof: Other." The headings under consideration are as follows:

6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

ISSUE:

Whether the sculptstone cow statuette is classifiable as an agglomerated stone statuette or as a toy.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied.

Heading 6810, HTSUS, provides for articles of cement, of concrete or of artificial stone, whether or not reinforced. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 68.10 states, in pertinent part, that:

This heading covers moulded, pressed or centrifuged articles (e.g., certain pipes) of cement (including slag cement), of concrete or of artificial stone...

Artificial stone is an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g., plastics). Articles of artificial stone include those of "terrazzo", "granito", etc.

The heading includes, inter alia, ... vases, flower-pots, architectural or garden ornaments; statues, statuettes, animal figures; ornamental goods. [emphasis added]

The articles of this heading may be bushed, ground, polished, varnished, bronzed, enamelled, made to imitate slate, moulded or otherwise ornamented, coloured in the mass, reinforced with metal, etc. (e.g., reinforced or pre-stressed concrete), or fitted with accessories of other materials (e.g., hinges, etc.)....

As animal statuettes are specifically enumerated in the ENs, the cow statuettes are clearly described by heading 6810, HTSUS.

Counsel has suggested that while the cow statuettes may meet the description of heading 6810, HTSUS, they are nonetheless excluded from classification in heading 6810 by operation of Note 1(l) to Chapter 68, which excludes from classification in Chapter 68, "Articles of Chapter 95 (for example, toys, games and sports equipment)."

Heading 9503 provides, in pertinent part, for toys as well as their parts and accessories. The ENs to Chapter 95 indicate that the chapter covers toys of all kinds, whether designed for the amusement of children or adults. The phrase "designed for the amusement of" is generally understood to indicate that the article is principally used and designed for amusement. Because Chapter 95 provides for articles which are classifiable according to the use of the class or kind of goods to which they belong, Additional U.S. Rule of Interpretation 1(a), HTSUS, is applicable.

Additional U.S. Rule of Interpretation 1(a) provides that in the absence of special language or context which otherwise requires, 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a) provides general criteria for discerning the principal use of an article, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See: Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

As is abundantly demonstrated in the importer's catalog, sculptstone, the cow statuette's constituent material, is one which is commonly used for decorative statuettes. Additionally, evidence has been presented that these articles environment of sale will be card and gift shops, a typical venue for decorative statuettes. Moreover, the articles are marketed as home decorative statuettes in such magazines as Elle Decor, Better Homes and Gardens, Martha Stewart's Living, Metropolitan Home, Midwest Living, Country Living and Woman's Day. Furthermore, they move in a channel of trade for gift shop decorative articles. These facts lead us to believe that the expectation of the ultimate purchaser of the cow statuette would be to use them as decorative display pieces. Finally, these factors do not indicate that the article belongs to the class or kind "toy", but rather to the class or kind " statuette."

In support of its contention that the cow statuette belongs to the class or kind "toy", counsel asserts that the cow statuette's physical characteristics indicate that it is "primarily designed to amuse." Citing Headquarters Ruling Letter (HRL) 953186 dated April 13, 1993, counsel claims that this ruling indicates the an article's humorous facial features, its posture and its general attire can suggest "personality" and provide amusement therefore making an article classifiable as a toy. HRL 953186 concerned a fully stuffed bear measuring 6 inches high in a sitting position sewn to a stuffed chair. In the ruling a conclusion was drawn that the article was amusing. No analysis was provided for the conclusion. Specifically, there was no discussion of facial features, attire, or personality providing amusement.

HRL 088928 dated September 6, 1991, which classified a plastic horse as a toy for tariff purposes, is also cited claiming that the ruling indicates that a lack of finely detailed features on a statuette indicates that it is classifiable as a toy rather than a statuette. While the ruling does mention a lack of finely detailed features, that factor was by no means the sole consideration for the determination that the article was a toy. HRL 088928 concerned the classification of a PVC plastic horse statuette blister packaged together with a saddle, blanket, bridle, brushes and feed box, all to scale. We held that its PVC plastic construction, lack of fine detail, packaging and overall appearance was not consistent with items not principally used as decorative statuettes. The accessories sold with the article seemed clearly designed to provide additional amusement. Moreover, the blister packaging was a common packaging method for toys and not seen for decorative items.

Applied to the present cow statuette, these same criteria clearly indicate that the article is principally used as a decorative statuette. It is true that the article may have what one could describe as an "amusing" expression and is not as detailed as other statuettes. However, as it abundantly evident from several of the importer's catalogs, the article's constituent material and packaging are of the kind quite commonly used for decorative statuettes. The cow statuettes are packaged and sold in individual boxes, a packaging practice common to the decorative statuette market; not the toy market. We note as well that the box is labeled "Cowbelles collectible figurine dancing cow." This is a clear indication that the article is intended to be sold as a decorative statuette. Finally, the articles are sold in a venue, card and gift shops and as "collectables", which are both indicative the ultimate purchaser's intent to use the cow statuettes as decorative statuettes, not toys.

Finally, counsel cites three cases decided under the Tariff Schedule of the United States (TSUS). Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576, 100th cong., 2d Sess. 548, 550 (1988).

It is asserted that the cow statuettes are toys because they provide the same kind of "frivolous amusement" that playthings give. In support of the position, counsel cites The United States v. Topps Chewing Gum Inc., 58 CCPA 157, C.A.D. 1022 (1971), (hereinafter Topps) which concerned the classification of various decorative buttons with humorous quotes. Topps held that if the purpose of an object is to give the same kind of enjoyment as playthings give, its purpose is amusement. It is the quality of mind or emotion induced by the object which is controlling. Therefore, an article classified as a toy does not have to be a plaything, provided that the quality of emotion induced by the article takes on the character of frivolous amusement. We are of the opinion that the reasoning provided for in Topps is not applicable to the present article. In Topps, the court classified articles whose humorous sayings created evident and inherent amusement. This is not the case with the cow statuettes. Nothing about them is inherently or evidently amusing.

According to counsel, the court in Rene D. Lyon Co., Inc. v. United States, 80 Cust. Ct. 39, C.D. 4735 (1978) (Lyons) found that miniature animal figures were given human attributes which were well suited to create amusement because they were comical in appearance and that this fact militated against the importer's contention that the articles were not toys. In Lyons as in all classification cases, the Customs classification, which was as a toy, was presumed to be correct. The importer had the legal burden of proving that Customs classification was incorrect and that its claimed classification of either Christmas ornaments or other plastic articles was correct. No claim of plastic statuette was made as a possible alternative, even though such a category existed in 1978.

The court found that the importer defendant did not provide enough evidence that either of its claimed classifications was the correct one, nor did the importer offer any evidence that the classification of toy was incorrect. The merits of the classification of the statuettes as toys was not addressed nor was the possibility of the alternative classification as a statuette. As the case addresses neither of these issues and was issued under the TSUS, it has little if any precedential value concerning the subject merchandise.

Finally, counsel asserts that its articles are collectables and that "collecting" by adults is a form of amusement. In support of this proposition, he cites Artmark Chicago, LTD. v. United States, 76 Cust.Ct. 187, C.D. 4654 (1976) aff'd. 64 C.C.P.A.116, 558 F.2d 600, C.A.D. 1192 (1977) (Artmark). Artmark concerned the classification of a plastic horse similar to that in HRL 088928, claiming the article was classifiable as a plastic statuette. Customs classified it as a toy. While the importer did examine an expert witness who stated that collecting articles as a hobby by adults, was in his opinion, a form of amusement, the merit of such a conclusion was not a consideration nor was it even addressed in the court's determination. Rather, the court held that the importer had not meet its burden of proving Customs classification as a toy was incorrect, because it presented evidence about the manner of sale which only applied to a restricted area of the U.S.. Additionally, the court held that the chief use of an article is a question of fact which must be established on the basis of positive testimony representing such use throughout the U.S. and that such use must relate to the particular class or kind of article involved at or immediately prior to the time of importation. As the validity of the cited comment was not addressed and the case was issued under the TSUS, it has little if any precedential value concerning the subject merchandise.

Heading 9503, HTSUS, does not describe the cow statuettes. Therefore, the artificial stone animal figures are classifiable under subheading 6810.99.00, which provides for articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other.

HOLDING:

The sculptstone cow statuette is classifiable under subheading 6810.99.00, which provides for articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other, with a general 1997 column one duty rate of 2 percent ad valorem.

This decision should be mailed by your office to counsel no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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See also:

• Tariff No.: 6810.99.00 - Articles of cement (other than tiles, flagstones, bricks and similar arts.), of concrete or artificial stone, nesoi
• Tariff No.: 9503.41.00 - Toys representing animals or non-human creatures, stuffed and parts and accessories thereof