CLA-2 CO:R:C:M 951363 EJD
TARIFF NO: 6911.10.80, 6912.00.48
Ms. Rita Yeh
Gold Leaf Enterprises, Inc.
5256 N.W. 163rd Street
Miami, FL 33014
RE: Reconsideration of NY 867922; Containers for Tea; Subheading
6913.10.10; Subheading 6913.90.10; LD 80-0210; C.I.E.
160/56; HQ 554455; HQ 087577
Dear Ms. Yeh:
This is in response to your request, dated January 6, 1992,
for reconsideration of New York Ruling Letter (NY) 867922, dated
November 13, 1991, concerning, in particular, the tariff
classification of various porcelain and ceramic tea containers
from Sri Lanka.
FACTS:
The tea containers come in various shapes and sizes and are
made of porcelain or terra cotta ceramic. Photo copies and one
representative sample were submitted. The sample is a
rectangular shaped decorative ceramic container, with a lid,
measuring approximately 4 inches in height and 2 1/2 inches in
width. It does not appear to be made of porcelain. Tea, in 1.75
gram plastic packs, is inserted in the containers prior to
importation.
You maintain that the porcelain or ceramic containers should
be classified under the provision for statuettes and other
ceramic articles in subheading 6913.10.10, Harmonized Tariff
Schedule of the United States (HTSUS), as they are the works of
professional sculptors and "...they are mainly statuettes and
ornaments in the shape of lion, elephants and goddess-like
figurines. They are all directly from molds made from original
models produced by professional sculptors."
Based upon the information supplied, the articles in
question are of ceramic or porcelain ware. Information as to
whether they are valued over $2.50 each and produced by
professional sculptors or directly from molds made from original
models produced by professional sculptors had not been submitted
in the original ruling request nor is it supplied now.
In NY 867922, the porcelain tea containers were held to be
classifiable under subheading 6911.10.80, HTSUS, subject to a 26
percent ad valorem rate of duty, primarily because no information
was submitted to demonstrate that the creators of the merchandise
qualified as professional sculptors as that term has been defined
and that they were valued over $2.50 each. The terra cotta
ceramic tea containers were held to be classifiable under
subheading 6912.00.48, HTSUS, subject to a 11.5 percent ad
valorem rate of duty, for the same reasons.
ISSUE:
Are porcelain and ceramic tea containers properly classified
under subheadings 6911.10.80 and 6912.00.48, HTSUS,
respectively, or under subheading 6913.10.10, and 6913.90.10,
HTSUS, respectively.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states that "for
legal purposes, classification shall be determined according to
the terms of the headings and any relative section or chapter
notes...."
You have requested reconsideration of NY 867922 because, in
your opinion, the porcelain and ceramic tea containers are
properly classified in subheading 6913.10.10, HTSUS, as
"ornamental articles". In support of your claim you state the
following:
After leaving an Oriental restaurant, people take their wine
figurine home for decorative purpose. These ornamental
articles have the same purpose. Once the tea is over, it
will be used as a decorative item since they cannot be
refilled.
Heading 6913, HTSUS, provides for "statuettes and other
ornamental ceramic articles...of porcelain or china...statues,
statutes and handmade flowers, valued over $2.50 each and
produced by professional sculptors or directly from molds made
from original models produced by professional sculptors."
For an article to be classified in heading 6913, HTSUS, it
must meet all the requirements.
In Headquarters Ruling (HQ) 061949, dated May 19, 1980,
published as Legal Determination (LD) 80-0210, dated December 23,
1980, Customs defined the term "professional" as it is used in
item 534.11, Tariff Schedules of the United States (TSUS) (the
precursor provision to subheadings 6913.10.10, 6913.90.10,
HTSUS), which provided for "statues, statuettes, and hand-made
flowers, all the foregoing not specially provided for, of ceramic
ware, valued over $2.50 each and produced by professional
sculptors." (Emphasis added.)
LD 80-0210 cites to C.I.E. 160/56, dated February 6, 1956,
which stated that "for a person to be considered to be a
professional he must either (1) "...be a graduate of a course in
sculpture at a recognized school of art (free fine art not
industrial art), or ..." (2) he must "... be recognized in art
circles as a professional sculptor by the acceptance of his works
in public exhibitions limited to the free fine arts."
Following the well established criterion enunciated in
C.I.E. 160/56, and observed in a substantial number of subsequent
decisions (e.g., HQ 554455, dated December 21, 1987) to be
considered a "professional sculptor," a person must be "a
graduate of a course in sculpture at a recognized school of free
fine art or be recognized in art circles as a professional
sculptor by the merits of his or her works in public exhibitions
limited to free fine arts."
As stated in LD 80-0210 "[t]his interpretation of the term
"professional" has been given effect in our rulings and we are of
the opinion that it should continue to be applied..."
While these earlier rulings are not binding under HTSUS,
Congress has indicated that earlier tariff rulings must not be
disregarded in applying the HTSUS. The conference report to the
Omnibus Trade Bill of 1988 states that
on a case-by-case basis prior decisions should be
considered instructive in interpreting the HTS[US],
particularly where the nomenclature previously
interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of
the HTS[US].
H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988).
Since the nomenclature in the TSUS and HTSUS are essentially the
same and the articles at issue are essentially the same, we find
that LD 80-0210 and HQ 554455 are instructive in understanding
what articles are classified in heading 6913, HTSUS.
The definition of "professional sculptor" has been carried
over into the HTSUS. See HQ 087577, dated November 21, 1990.
You have not identified the artists nor have you supplied
information to determine if the artists qualified as
"professional sculptors." Therefore, classification in
subheadings 6913.10.10 and 6913.90.10, HTSUS, is precluded. In
addition, you have not provided information to confirm that these
porcelain and ceramic tea containers are valued over $2.50 each.
Finally, five of the fourteen ceramic containers in question do
not qualify for classification in heading 6913 as they are not
statues, statuettes or handmade flowers. Based on the
representative sample and the photos submitted, the containers
appear to be works of craftsmen rather than professional
sculptors.
The applicable subheading for porcelain tea containers is
6911.10.80, HTSUS, which provides for other tableware or
kitchenware of porcelain or china. The rate of duty is 26
percent ad valorem.
The applicable subheading for terra cotta ceramic tea
containers is 6912.00.48, HTSUS, which provides for other
tableware and kitchenware not of porcelain or china. The rate of
duty is 11.5 percent ad valorem.
HOLDING:
The porcelain tea containers are properly classified under
subheading 6911.10.80, HTSUS, which provides for "tableware,
kitchenware, other household articles and toilet articles, of
porcelain or china...tableware and kitchenware...other."
The terra cotta tea containers and ceramic tea containers
are properly classified under subheading 6912.00.48, HTSUS, which
provides for "ceramic tableware, kitchenware, other household
articles and toilet articles, other than porcelain or
china...other."
NY 867922 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division