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HQ 960365




May 11, 1998

CLA-2 RR:CR:GC 960365 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6810.99.00

Mr. Arlen T. Epstein
Serko & Simon LLP
One World Trade Center, Suite 3371
New York, New York 10048

RE: Jointed sculptstone figurines; HRL 959308

Dear Mr. Epstein:

This is in response to your March 21, 1997, letter requesting a binding ruling on behalf of Russ Berrie and Company , Inc. ("Russ Berrie"), for the classification of jointed sculptstone figurines under the Harmonized Tariff Schedule of the United States Annotated (HTSUS). Samples of the subject articles were submitted. In preparing this ruling, we considered arguments presented in a meeting held on October 21, 1997, as well as in your supplemental submission of December 8, 1997.

FACTS:

The subject articles are identified as jointed sculptstone figurines(a blend of 65 percent polyester, 31 percent plaster powder, 2 percent white powder, 1 percent stiffener and 1 percent other materials). The figurine is created by injecting this mixture into a mold to harden. Once hardened, the figurines are smoothed and then painted. Submitted samples are pre-production samples of a turkey (#2630) and a crow (#2631). They will be manufactured in China. Both measure 4« inches in height and have jointed appendages (wings and legs).

In a meeting held on October 21, 1997, you confirmed that a previously-presented Russ Berrie catalog contained virtually identical jointed sculptstone figurines, identified as "Minikins " and described as "jointed sculptstone animals." Additionally, you confirmed that like the "Minikins ", the crow and turkey would be sold to card and gift shop retailers and that the subject articles are manufactured by a company known as Top Green Gifts.

ISSUE:

Whether the jointed sculptstone figurines are classifiable as agglomerated stone statuettes or other toys.

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 "[a]rticles 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.)....

The physical appearance and the constituent material of the samples indicate that the jointed turkeys and crows are artificial stone animal figures described by heading 6810, HTSUS; specifically subheading 6810.99.00, which provides for articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other. Additionally, evidence has been presented that these articles' environment of sale will be card and gift shops; a typical venue for decorative/collectable statuettes. Moreover, the name of their manufacturer indicates that the articles travel in a channel of trade for gift shop decorative articles. All of this evidence leads us to believe that the expectation of the ultimate purchaser of these articles would be to use them as decorative/collectable display pieces.

You have suggested that while the jointed sculptstone turkey and crow meet the description of heading 6810, HTSUS, they are nonetheless excluded from classification in this heading by operation of Note 1(l) to Chapter 68. Note 1(l) excludes from classification in Chapter 68, "[a]rticles of Chapter 95 (for example, toys, games and sports equipment)." You believe the jointed sculptstone turkey and crow meet the description of heading 9503, HTSUS.

Heading 9503 provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof." The term "toy" is not defined in the HTSUS. The ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether "designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, 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. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum.)

Your first assertion is that the articles are "primarily designed to amuse." However, you have provided no evidence, of the type described in Carborundum, to indicate that the subject articles are designed, marketed, or used principally to amuse. Rather, you make a variety of arguments about certain Headquarters Ruling Letters (HRL) and CIT cases and their various interpretations of the phrase "designed to amuse." These arguments were addressed and dismissed in HRL 959308 dated November 20, 1997, which classified sculptstone cow statuettes also imported by Russ Berrie.

In HRL 959308, we held that the cow statuettes were not described by heading 9503, HTSUS, because the statuettes were not primarily designed to amuse, but rather as decorative display pieces. This finding was based on the importer's catalog, which abundantly demonstrated that the cow statuette's constituent material is one which is commonly used for decorative statuettes, that the cow statuettes' environment of sale will be card and gift shops(a typical venue for decorative statuettes), that the cow statuettes were 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 and, finally, that the channel of trade in which they moved is for gift shop decorative articles, not toys.

As the only Carborundum factor evidence provided appears to confirm that the articles belong to the class or kind "decorative statuettes," not "toys," the sculptstone 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 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. with a general 1998 column one duty rate of 1 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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