CLA-2 RR:CR:GC 962657 JGB
Area Port Director
U.S. Customs Service
Suite 2100
1000 Second Ave.
Seattle, Washington 98104-1020
RE: Protest 3001 98 100420; Ceramic Holiday Mugs
Dear Director:
This is a decision on Protest 3001 98 100420 against your decision in the classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS). The entry, made in 1997, was liquidated on June 26, 1998, and the protest timely filed on September 22, 1998. Our decision follows:
FACTS:
The merchandise consists of the following four ceramic mugs sold as a set of four unnumbered styles:
Style one is the “Woodland Santa”, described on the box as a handpainted ceramic mug, with oversized capacity and intricate detailing. It measures about 4¾ inches in height, a container diameter of about 3 inches, and about 6 inches in width, including the handle. The mug depicts the head of Santa Claus with a traditional representation of white hair, white beard and a red coat. Simulated green holly with red berries encircle the top of the mug, continuing on down the handle. Other features are ceramic appliqués at the base representing a fawn and bunny with an evergreen, pinecone, and holly berry decoration. The fawn, a separate figure attached before firing, stands about 2¼ inches high. The interior of the mug is not cylindrical, but instead is the negative of the deep three-dimensional design on the exterior. The article is relatively delicate with fragile tiny ears of the fawn and bunny and a warning on the underside that indicates that the article is not suitable for dishwasher or microwave use.
Style two is the “Snowman Mug.” The article, about 4¾ inches in height, resembles the head of a snowman with coal eyes, a carrot-shaped nose, and a black top hat adorned with holly and pinecones. At the base of the mug are a wrapped Christmas present, a teddy bear, and a decorated Christmas tree The exterior of the cylinder is deeply molded to simulate a ceramic figurine and the indentations appear in the negative on the interior of the mug. The design is of a snowman with a black top hat and attached ceramic figurines in front, as with the “Woodland Santa.” The handle is made from the scarf portion of the design.
Style three is the “Teddy Bear Mug” which resembles the head of a teddy bear wearing a Santa-type red hat with white trim and ornamented with holly and a bell. A decorated gingerbread man cookie, a wrapped Christmas present and a candy cane rest at the base of the mug. As with the previously described articles, the separate ceramic figurines of the cookie and the candy cane and Christmas present are attached to the front of the mug prior to firing, thereby being joined into a single ceramic unit. They do not form part of the beverage-containing portion of the article.
Style four is the “Nutcracker” ceramic mug. This design is the classic form of the head of the wooden nutcracker with white hair and a long, white beard. At the base of the mug rest a wrapped Christmas present and a toy train engine. The head holds a crown which forms the rim of the mug. The ceramic handle is formed to simulate red braid, matching the bottom of the crown, with a green and red decoration wrapped around it. Again, the Christmas present and train engine figurines are attached to the mug, but do not form part of the beverage-containing portion of the article.
You classified the merchandise in heading 6912, HTSUS, in the provision for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other”, specifically in subheading 6912.00.4400, HTSUS.
In each mug, the design goes all the way around the back of the head with simulated hair, snow, or fur, as the case might be. The decorations are hand painted and the article gives the appearance of a decorative article with incidental characteristics of a beverage container.
The protestant claims that the merchandise is classified in heading 9505, specifically in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”
ISSUE:
Whether the “Snowman,” “Woodland Santa,” “Teddy Bear,” and “Nutcracker” mugs are classified in heading 9505, HTSUS, as festive articles, or as ceramic household articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and
3. Is associated with or used on a particular holiday.
Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See the Informed Compliance Publication on the Classification of Festive Articles published in the Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.
In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
In considering the Midwest standards, none of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. Also, the merchandise presents the principal question of whether the articles are functional, and if so, do they present a recognized symbol of the three dimensional figure. All of the articles appear to be functional, in that they are advertised on the box as a mug. Close examination of the articles indicates that their functionality may be marginal, at best. The design and details are quite intricate so that any use beyond a ceremonial one might be unlikely. “Ordinary” use as a drinking mug for the holiday period would seem to be unlikely, in that the delicate and bulky nature of the attached figurines would make the mugs highly susceptible to breakage. Also, as indicated, supra, hand washing is prescribed by the warning label on the underside, which advises against dishwasher and microwave usage. In short, the physical characteristics and appearance of the article removes it from ordinary household beverage service. It is more appropriate for use as a decorative article.
You have suggested that some of these articles fail as festive articles because they did not possess recognized symbols of the indicated holiday of Christmas. While the Santa head is a strong symbol and would qualify, you have expressed doubt about whether the other symbols would qualify. Moreover, the issue has been raised as to whether these heads are three-dimensional or whether three-dimensional full-bodied in this context means that the article would only qualify if it presented a complete nutcracker with torso and legs, a snowman with its lower torso-esque snowballs and so on.
In Headquarters Ruling Letter (HQ) 961839, dated March 9, 1999, we noted with respect to snowmen claimed to be festive, the following:
“At issue here is whether this snowman plaque, taken as a whole, corresponds to an article used in celebration of a particular holiday. In other words, is the ordinary snowman which is commonly associated with winter, so embellished here with a holly decoration, red scarf and green mittens, that it has become part of the class of festive articles.”
In agreeing that the particular snowmen depicted were, indeed, representations of the class, we went on to state that:
the snowman is not automatically an accepted symbol for the recognized holiday of Christmas. *** The Carborundum factors taken together point to a conclusion that the article is within the class of festive articles. We note that not all snowmen are automatically festive, nor will the presence of holly, or other Christmas-related images automatically qualify the article for classification as a festive article. This is so because the images may appear with articles that are inconsistent with festive use. Likewise, the mere appearance of an article in a Christmas catalog is not sufficient to bring the article into the class of festive articles; however, such an appearance is useful evidence toward that end.
The standards and observations in HQ 961839, apply equally here. The Carborundum evidence presented, among other things, that the goods are “on the sales floors between September 1 and December 25“ and “in a section of the warehouse reserved for Christmas merchandise,” as well as the type of decoration associated with a snowman. In view of this evidence, the snowman mug has been demonstrated to be within the class of festive articles, classifiable in subheading 9505.10.50, HTSUS.
With respect to the Teddy Bear mug, the conclusions and finding regarding the snowman are equally applicable. That is, not all Teddy Bears are qualified as recognized symbols of the holiday, but this one is in the conjunction with other recognized symbols such as the holly and the wrapped Christmas present.
The Nutcracker figure is well-established as a recognized figure or symbol of the holiday and was considered as a qualifying festive design in the Midwest decision. Therefore, as a recognized symbol, it also will qualify for inclusion in the class of festive articles.
The Santa figure continues to fall within the class of festive articles, regardless of where his three-dimensional figure appears.
Although the functionality of the articles has been raised as an issue, it is not necessary to decide it here. If the articles are decorative, the symbols on them qualify them as festive articles, coupled with the Carborundum evidence presented. If they are functional, the symbols appear to be three-dimensional, in conformity with the standards presented in the Informed Compliance Publication (supra). Among the merchandise considered by the Midwest court, the mugs were in a jack-o’lantern truncated spherical shape, making them three-dimensional. Our understanding of the phrase “full bodied” in the Informed Compliance Publication is that the article cannot be two dimensional, a silhouette or a partial representation of the symbol. Therefore, for example, we have rejected claims of festive treatment for snowman mugs, where the snowman design was merely embellished or decorated on one side. See HQ 962671, dated March 14, 2000 and HQ 961838, dated March 18, 1999, for examples of mugs where the festive claim was rejected. By contrast, the designs considered here are one in the same with the mug, they are full-bodied in the correct sense that they are not merely added to one side, and they create a decorative and incidentally functional household article used in the celebration of a particular holiday, namely Christmas.
All four designs are classified as festive articles under heading 9505, HTSUS, specifically, in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other, Other.”
HOLDING:
The protest should be allowed.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of
the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division