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HQ 964604




December 18, 2000

CLA2 RR:CR:GC 964604 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.50

Ms. Dorthea Ward-Smith
P.O. Box 1877
Boca Raton, FLA 33435

RE: Reconsideration of NY 848884; decorative ceramic urn containing cream perfume

Dear Ms. Ward-Smith:

This is in reference to New York Ruling Letter (NY) 848884, issued to you on January 30, 1990, which concerned the classification of a decorative, ceramic urn containing cream perfume under the Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered NY 848884 and now believe that the classification set forth is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on November 15, 2000, in Vol. 34, No. 46 of the Customs Bulletin, proposing to revoke NY 848884 and to revoke the treatment pertaining to the decorative, ceramic urn containing cream perfume. No comments were received in response to this notice.

FACTS:

The articles were described in NY 848884 as follows:

Samples of two ceramic containers filled with cream perfume were submitted with your inquiry. The cream perfume does not contain alcohol. The small ceramic jar is black with flowers imprinted on the jar. The jar measures approximately 2 inches in height and 1 1/2 inches in diameter. The jar is fitted with a lid. The large ceramic container is a round white jar with a lid. The jar measures approximately 2 1/2 inches in diameter and 1 inch in height. The lid has two human figures imprinted on the top. The containers are not the normal containers used for the cream perfume.

ISSUE:

Whether the decorative, ceramic urn that contains cream perfume is classifiable as perfume under subheading 3303.00.30, HTSUS, or as a decorative ceramic article under subheading 6913.90.50, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]”

The HTSUS headings and subheadings under consideration are as follows:

3303.00 Perfumes and toilet waters:
Not containing alcohol:
3303.00.20 Other.

6913 Statuettes and other ornamental ceramic articles: Other:
Other:
6913.90.50 Other.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs to heading 3303 provide, in pertinent part, as follows:

This heading covers perfumes in liquid, cream or solid form (including sticks), and toilet waters, designed to give fragrance primarily to the human body.

Perfumes and scents generally consist of essential oils, floral concretes, absolutes or mixtures of synthetic odoriferous substances, dissolved in highly concentrated alcohol. They are usually compounded with slightly perfumed adjuvants and a fixative or stabiliser.

The ENs to heading 6913 provide, in pertinent part, as follows:

This heading covers a wide range of ceramic articles of the type designed
essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments). (B) Tableware and other domestic articles only if the usefulness of the articles is clearly subordinate to their ornamental character, for example, trays
moulded in relief so that their usefulness is virtually nullified, ornaments incorporating a purely incidental tray or container usable as a trinket dish or ashtray, miniatures having no genuine utility, value, etc. (C) Articles, other than tableware and domestic articles, of the kind used for ornamenting or decorating the household, office, etc. For example, smokers ’ sets, jewel cases, cachou boxes, cigarette boxes, perfume burners, ink-stands, book-ends, paperweights and similar desk furnishings and picture frames.

The miniature ceramic urn, upon importation, is prima facie classifiable in two headings: 3303 and 6913, HTSUS. Therefore, classification must be made pursuant to GRIs 2(b) and 3. GRI 2(b) provides in pertinent part that “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, that:

3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(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.

The ceramic containers and cream perfume form a composite good made up of different components. See GRI 3(b) EN (IX). As regards the essential character of the goods, we note several decisions by the Court of International Trade (CIT) which addressed “essential character” for purposes of GRI 3(b). Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3rd 969 (Fed. Cir. 1997), involved the classification of shower curtain sets, consisting of an outer textile curtain, inner plastic magnetic liner, and plastic hooks. The Court examined the role of the constituent materials in relation to the use of the goods and found that, although the relative value of the textile curtain was greater than that of the plastic liner, and that although the textile curtain also served protective, privacy and decorative functions, because of the fact that the plastic liner served the indispensable function of keeping water inside the shower, the plastic liner imparted the essential character upon the set. See also Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995), in which the Court also looked to the role of the constituent material in relation to the use of the goods to determine essential character.

We find that the essential character of the ceramic urn containing cream perfume is imparted by the ceramic urn. The ceramic urn is designed and constructed to resemble a Greek urn, and is decorated with “classic” Greek characters and figures. The ceramic urn is decorative and will likely be retained for such purposes long after the perfume is exhausted or evaporates. Therefore, the articles are classifiable in heading 6913, HTSUS, as decorative ceramic articles.

HOLDING:

The decorative, ceramic urn that contains cream perfume is classifiable under subheading 6913.90.50, HTSUS, as statuettes and decorative articles of ceramic, other, other, other.

EFFECT ON OTHER RULINGS:

NY 848884 is hereby REVOKED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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