CLA-2 CO:R:C:M 950641 KCC

Howard M. Paull, Esq.
Sharretts, Paley, Carter and Blauvelt, P.C.
67 Broad Street
New York, New York 10004

RE: Porcelain Easter Egg; GRI 1; festive articles; heading 9505; EN 95.05; Additional U.S. Rule of Interpretation 1(a); EN 69.13; Additional U.S. Note 5(a), Chapter 69, Section XIII; revoke DD 861118

Dear Mr. Paull:

This is in reference to a ruling issued to you by Customs in San Diego, California on March 25, 1991 (DD 861118), concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a 3 inch high porcelain easter egg.

FACTS:

DD 861118 held that a 3 inch high porcelain easter egg with a baby chick hatching from the center of the egg, with the chick's head and wing surrounded by a relief of painted flowers on the surface of the egg, was classified as a festive article under subheading 9505.90.60, HTSUSA.

ISSUE:

What is the proper tariff classification of the porcelain easter egg under the HTSUSA?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings of the tariff and any relative section or chapter notes...."

After reconsideration of the applicable law, we are of the opinion that the tariff classification in DD 861118 is incorrect for the porcelain easter egg in question. Heading 9505, HTSUSA, provides for "Festive, carnival, or other entertainment articles." Explanatory Note (EN) 95.05 of the Harmonized Commodity Description and Coding System (HCDCS) states that heading 9505, HTSUSA, covers:

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

HCDCS, Vol. 4, p. 1590. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Articles classifiable in Heading 9505, HTSUSA, tend to have no other function than decoration. Heading 9505, HTSUSA, is generally regarded as a use provision. Hence, Additional U.S. Rule of Interpretation 1(a) must be reviewed.

Additional U.S. Rule of Interpretation 1(a) indicates that:

In the absence of special language or context which otherwise requires-- (a) 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.

While the subject item is decorative, the porcelain easter egg figure as a class or kind of merchandise is not specifically holiday related; it can be used all year round and can come in a wide variety of poses. Accordingly, the porcelain easter egg figure is not classified as a festive article in Heading 9505, HTSUSA. Classification must be found elsewhere.

Heading 6913, HTSUSA, provides for statuettes and other ornamental ceramic articles. EN 69.13 provides that this heading covers the following:

Articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to support or contain other decorative articles or to add to their decorative effect, e.g.:

(1) Statues, statuettes, busts, haus or bas reliefs, and other figures for interior or exterior decoration; ornaments (including those forming parts of clock sets) for mantel pieces, shelves, etc., ....

HCDCS, Vol. 3, p. 923. Additional U.S. Note 5(a), Chapter 69, Section XIII, HTSUSA, states that the terms "porcelain," "china" and "chinaware" embrace ceramic ware...." As the easter egg figure is a porcelain product, it is regarded as ceramic ware. We are of the opinion that the porcelain easter egg figure is ornamental and decorative. It has no utility value and is wholly ornamental. Heading 6913, HTSUSA, is the appropriate heading for the porcelain easter egg. Inasmuch as the easter egg is made of porcelain, it is properly classified in subheading 6913.10.50, HTSUSA.

HOLDING:

The porcelain easter egg is properly classified under subheading 6913.10.50, HTSUSA, which provides for "Statuettes and other ornamental ceramic articles...Of porcelain or china...Other...Other."

This notice to you should be considered a revocation of DD 861118 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to DD 861118 (19 CFR 177.9(d)(1)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, DD 861118 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in

that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances.

Sincerely,

John Durant, Director
Commercial Rulings Division