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HQ H015087




October 26, 2007

CLA-2 OT:RR:CTF:TCM H015087 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6810.99.00

Ms. Tammie Oliver
Kohl’s Department Stores
N56 W17000 Ridgewood Drive
Menomonee Falls, WI 53051

RE: Classification of Pilgrim votive holder

Dear Ms. Oliver:

This letter is in response to your request of February 7, 2007, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a pilgrim votive holder

Two other items included in your request for a binding ruling were addressed by the National Commodity Specialist Division in New York Ruling (NY) N006641, dated February 26, 2007.. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response. A sample of the pilgrim votive holder at issue was forwarded with your request.

FACTS:

The merchandise at issue is a pilgrim votive holder (Style LF70073). You state the votive is designed for and will be sold for decoration during the Thanksgiving holiday. It features a kneeling pilgrim man and woman that measure approximately 6 inches in height on a base measuring approximately 6 inches wide by 3 ½ inches deep. The pilgrims are composed of calcium carbonate agglomerated with plastics resin. You state the calcium carbonate is derived from stone material. The pilgrims are displayed with various items that taken as a whole are identifiable with the Thanksgiving holiday including a turkey, pumpkins, wheat stalks and corn. A clear cylindrical glass votive holder measuring approximately 2 ½ inches tall with an inside opening diameter of 1 ½ inches rests between the kneeling pilgrims. A copy of last year’s advertisement of merchandise of the same motif was provided with the ruling request. In the advertisement, similar figurines in a standing position are identified under the Harvest Collection for home accents. The votive holder is not imported with a candle and is not advertised with other candles and decorative lighting items in the same advertising flyer.

ISSUE:

Whether the pilgrim votive holder is classified in heading 9505, HTSUS, as a festive article, heading 9405, HTSUS, as a lamp or lamp fitting, or heading 6810, HTSUS, as an article of artificial stone.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 9505, HTSUS, provides for “Festive, carnival or other entertainment articles, including conjuring tricks and novelty jokes.” Chapter Note 1(v) to Chapter 95, HTSUS, provides in relevant part:

This heading does not cover:

(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).

The Explanatory Notes to Chapter 95, HTSUS, provide in relevant part:

The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.

Admittedly, the pilgrim votive holder is festive in nature and epitomizes the Thanksgiving holiday. However pursuant to Note 1(v) to Chapter 95, HTSUS, articles containing a festive decoration that have a utilitarian function are excluded from heading 9505, HTSUS. The votive holder is designed to hold a candle. Thus, it has a utilitarian function. As such, it is excluded from heading 9505, HTSUS.

Heading 9405, HTSUS, provides for “Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included.”

Note 1(l) to Chapter 94, HTSUS, provides in relevant part:

This chapter does not cover:

(l) decorations (other than electric garlands) such as Chinese lanterns (heading 9505).

The EN to heading 9405, HTSUS, provides in relevant part:

This chapter covers in particular:

(6) Candelabra, candlesticks, candle brackets, e.g., for pianos.

Heading 6810, HTSUS, provides for “Articles of cement, of concrete or of artificial stone, whether or not reinforced.”

Note 1(k) to Chapter 68, HTSUS, provides:

This Chapter does not cover:

Articles of chapter 94 (for example, furniture, lamps and lighting fittings, prefabricated buildings);

The EN to heading 6810, HTSUS, provides in relevant part:

The heading includes, inter alia, statues, statuettes, animal figures; ornamental goods.

Inasmuch as no provision in the HTSUS describes the pilgrim votive holder in its entirety, it is considered a composite good and cannot be classified according to GRI 1. When goods cannot be classified by applying GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's are applied. GRI 2(a) states in pertinent part that:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

The article is imported finished and complete, therefore GRI 2(a) does not apply.

GRI 2(b) states, in pertinent part, that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. The classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.

GRI 3 states that 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.

The two remaining headings under consideration, 9405, HTSUS, which describes the lighting component, i.e., the votive holder, and 6810, HTSUS, which describes the agglomerated stone pilgrims, each describe part only of the materials used to make the article in question. Therefore, the headings are considered equally specific and GRI 3(b) must be applied.

GRI 3(b) states, in pertinent part, that:

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.

EN VIII to GRI 3(b), pg. 4, states that:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The votive holder will contain a candle and provides illumination, but the agglomerated stone pilgrims are greater in bulk, weight or value than the votive holder. It appears that the lighting function simply enhances the already decorative nature of the article. Therefore, the article will not be purchased, primarily, for its lighting characteristics. Accordingly, the essential character is imparted by the agglomerated stone pilgrims.

HOLDING:

By application of GRI 1 and 3(b), the pilgrim votive holder is classified in heading 6810, HTSUSA. It is provided for in subheading 6810.99.0080, HTSUSA, which provides for “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other, Other.” The general column one rate of duty is Free.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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