CLA-2 OT:RR:CTF:TCM H026515 JPJ

Ms. Michele Smith
Sears, Roebuck and Co.
3333 Beverly Road, BC 204A
Hoffman Estates, IL 60179

Re: “Three Wise Men” Porcelain Figurines; Revocation of NY A87160

Dear Ms. Smith:

This letter concerns New York Ruling letter (“NY”) A87160, dated September 17, 1996, issued to you by the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP). At issue in that ruling was the correct classification of “three porcelain figurines, item number 97821, which depict the three wise men and measure approximately 11 inches in height”, under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY A87160 and have found that it is incorrect. Our discussion on this matter is set forth below.

Pursuant to section 625(c), 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), notice of the proposed action was published on October 9, 2008, in Vol. 42, No. 42, of the Customs Bulletin. CBP received no comments in response to the notice.

FACTS:

The “three wise men” figurines, item number 97821, are made of porcelain and measure approximately 11 inches in height.

ISSUE:

Whether the “three wise men” porcelain figurines are classified as festive articles of heading 9505, because they constitute figures of a nativity scene. LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings 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’s may then be applied. The HTSUS provisions under consideration are as follows:

6913 Statuettes and other ornamental ceramic articles:

Of porcelain or china:

Other:

6913.10.50 Other

* * * * * *

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

9505.10 Articles for Christmas festivities and parts and accessories thereof:

9505.10.30 Nativity scenes and figures thereof

* * * * * *

Chapter 69 Note 2(k) states, in relevant part, that this chapter does not cover articles of Chapter 95. Therefore if we find that the instant merchandise is classified in heading 9505, the merchandise is excluded from classification in Chapter 69.

The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

EN 95.05 (A)(2) states, in relevant part, that this heading covers “[a]rticles traditionally used at Christmas festivities, e.g., . . . nativity figures. . . .” In NY A87160, we stated that “a nativity scene must include the characters of Joseph, Mary, and the Child. . .” However, in HQ 952967, dated March 17, 1993, we classified figurines depicting three wise men, or Magi (Melchior, Kaspar, and Balthasar), along with a shepherd, sheep, donkey, cow and camel, but without “Joseph, Mary, and the Child”, in heading 9505, HTSUS, as festive articles.

From our Internet research, we conclude that nativity scenes often include the crib or manger scene of Mary, Joseph, and the infant Jesus, as well as the Magi, as described in Matthew 2:1-12. Hence, we find that HQ 952967 correctly states our position that “three wise men” figurines are “nativity figures” commonly and traditionally associated and used as part of nativity scenes at Christmas festivities. See also Headquarters Ruling Letter (HQ) 087894, dated December 4, 1990.

As such, the three wise men porcelain figurines are classified in heading 9505, HTSUS, as festive articles. Specifically, the instant porcelain figurines are figures of nativity scenes classified in subheading 9505.10.30, HTSUS. Pursuant to Chapter 69, Note 2(k), the instant merchandise is specifically excluded from Chapter 69.

HOLDING:

The three wise men porcelain figurines, item number 97821, are classified in subheading 9505.10.30, HTSUS, as “Festive, carnival or other entertainment articles, . . . : Articles for Christmas festivities and parts and accessories thereof: Nativity scenes and figures thereof.”

EFFECT ON OTHER RULINGS:

NY A87160, dated September 17, 1996, is hereby revoked.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division