CLA-2 CO:R:C:F 952967 LPF
Mr. David Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, NY 10036
RE: Porcelain nativity scene figurines of three wise men (Magi),
a shepherd, sheep, donkey, cow, and camel; Subheading
9505.10.30, HTSUSA; Festive articles, nativity scene
figures; HRL 087894
Dear Mr. Eisen:
This is in response to your letter dated October 13, 1992,
on behalf of Avon Products, Inc. Your inquiry requests the
proper classification, under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), of porcelain nativity scene
figurines. You submitted samples with your request for a binding
ruling.
FACTS:
The articles at issue, imported from China and/or Taiwan,
are figurines depicting the three wise men, or Magi (Melchior,
Kaspar, and Balthasar), a shepherd, sheep, donkey, cow and camel.
The figurines range from approximately 3 to 7 inches in height
and length. Each figurine is constructed of white, bisque
porcelain, incorporates the artist's initials, is dated, and is
stamped with the Avon Nativity Collectibles logo. The boxes, in
which each figurine is individually packaged, depict the various
nativity scenes which one may display upon purchasing the other
figurines.
ISSUE:
Whether the figurines are classifiable in heading 9505 as
festive articles or elsewhere in the HTSUSA.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported goods are classified
by application of GRI 1, that is, according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
Heading 9505 provides for, inter alia, festive, carnival and
other entertainment articles. The EN's to 9505 indicate that the
heading 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
festival 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....
* * *
In general, merchandise is classifiable in heading 9505,
HTSUSA, as a festive article when the article, as a whole:
1. is of non-durable material or, generally, is not
purchased because of its extreme worth, or intrinsic
value (e.g., paper, cardboard, metal foil, glass fiber,
plastic, wood);
2. functions primarily as a decoration (e.g., its primary
function is not utilitarian); and
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3. is traditionally associated or used with a particular
festival (e.g., stockings and tree ornaments for
Christmas, decorative eggs for Easter).
An article's satisfaction of these three criteria is
indicative of classification as a festive article. The motif of
an article is not dispositive of its classification and,
consequently, does not transform an item into a festive article.
First, the figurines are made of non-durable material.
Customs will consider articles, such as the figurines, to be made
of non-durable material since they are not purchased because of
their extreme worth or value (as would be the case with a
decorative, yet costly, piece of art or crystal).
Next, the articles' primary function is decorative, as
opposed to, utilitarian. It is apparent, the figurines serve no
useful function besides their role as decorations.
Finally, when examining each figurine, as a whole, it is
evident that each article is traditionally associated or used
with the particular festival of Christmas. Nativity scenes are
cited in the EN's to 9505, as exemplars of traditional, festive
articles. When meeting with Customs, counsel cited the language
included in subheading 9505.10.30 providing for, "nativity scenes
and figures thereof," as evidence that individual figurines are
classifiable within this subheading, although they may be
imported and purchased individually and not as an entire "scene."
It is our position that figurines commonly and traditionally
associated as part of nativity scenes which, upon importation,
are identifiable as being destined for such use, are classifiable
in 9505.10.30. See The Carrington Co., United Geophysical Corp.
v. The United States, 61 CCPA 77, C.A.D. 1126, 496 F. 2d 902
(1974) stating that the classification of an imported article
must rest upon its condition as imported. As the subject
figurines are commonly and traditionally associated as part of
nativity scenes and, upon importation, are identifiable as being
destined for such use, they are classifiable in heading 9505 as
festive articles. See Headquarters Ruling Letter 087894, issued
December 4, 1990. Because the articles qualify as figures of
nativity scenes, the appropriate subheading is 9505.10.30.
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HOLDING:
The nativity scene figures are classifiable in subheading
9505.10.30, HTSUSA, as "Festive, carnival or other entertainment
articles,...Articles for Christmas festivities and parts and
accessories thereof: Nativity scenes and figures thereof." The
applicable rate of duty is 5.3 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division