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