CLA-2 CO:R:C:G 088584 NLP
Mr. Louis S. Shoichet
Siegel, Mandell & Davidson
One Astor Plaza
1515 Broadway- 43rd Floor
New York, NY 10036
RE: Porcelain display plates; festive articles; subheadings
9505.10.30, 9505.10.50; 9505.90.60; Explanatory Notes 95.05
and 69.13; other ornamental ceramic articles
Dear Mr. Shoichet:
This is in response to your letters dated January 9, 1991,
May 3, 1991, March 30, 1992 and July 29, 1992, in which you
requested the tariff classification of porcelain display plates
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The products at issue are three decorative porcelain plates:
the "Mother's Day Plate 1991", the "Nativity Plate" and the "1992
Christmas Plate". Samples of the three plates were submitted for
our examination.
The "Mother's Day Plate 1991", consists of a porcelain plate
with a plastic stand. The plate measures 5 inches in diameter
and is trimmed with 22 karat gold. The face of the plate depicts
three young children honoring mom on Mother's day. In addition,
the words "Love Makes All Things Grow" and "Mother's Day 1991"
are set forth around the perimeter of the plate.
The "Nativity Plate" is a porcelain plate that is imported
and sold with a plastic stand. The plate measures approximately
8-1/2 inches in diameter. It depicts the representations of
Joseph and Mary, clothed in traditional garb, looking down at the
baby Jesus. A halo is positioned behind the head of each figure
and the scene is set within a manger.
The third plate, the "1992 Christmas Plate", is a porcelain
plate that measures approximately 8-1/2 inches in diameter. It
is also trimmed in 22 karat gold. The face of the plate depicts
various animals, including rabbits, racoons and a porcupine,
surrounding a fireplace and decorating a Christmas tree. "1992"
is captioned along the top center of the plate and the word
"Christmas" is featured along the bottom center of the plate.
According to counsel all three plates are marketed and sold
in holiday catalogues during the 2-3 months prior to the
particular holiday to which they relate.
ISSUE:
Whether the porcelain plates are classifiable as other
ornamental articles of porcelain in subheading 6913.10.50, HTSUS,
or as other festive articles in subheading 9505.90.60, HTSUS, or
as nativity scenes and figures thereof in subheading 9505.10.30,
HTSUS, or as other articles for Christmas festivities in
subheading 9505.10.50, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes and, unless otherwise required, according to the
remaining GRI's taken in order.
You argue that the subject plates are specially constructed
and designed to commemorate Mother's Day and Christmas,
respectively. You assert that the intended use of these plates
is for display purposes in the home during Mother's Day and
Christmas. Furthermore, you state that these items are marketed
and sold for use during a recognized festive holiday and
therefore, they should be classified as festive articles in
heading 9505, HTSUS.
Specifically, it is your position that the "Mother's Day"
plate is classified in subheading 9505.90.60, HTSUS, which
provides for "[f]estive, carnival or other entertainment
articles, including magic tricks and practical joke articles;
parts and accessories thereof; [o]ther: [o]ther." The "Nativity
Plate" should be classified in subheading 9505.10.30, HTSUS,
which provides for "[f]estive, carnival or other entertainment
articles, including magic tricks and practical joke articles;
parts and accessories thereof; [a]rticles for Christmas
festivities and parts and accessories thereof: [n]ativity scenes
and figures thereof." The "1992 Christmas Plate" should be
classified in subheading 9505.10.50, HTSUS, which provides for
"[f]estive, carnival or other entertainment articles, including
magic tricks and practical joke articles; parts and accessories
thereof; [a]rticles for Christmas festivities and parts and
accessories thereof: [o]ther: [o]ther."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be utilized. The ENs, although not dispositive, are to be
used to determine the proper interpretation of the HTSUS. 54 Fed.
Reg. 35127, 35128 (August 23, 1989). In explaining the scope of
heading 9505, HTSUS, EN 95.05, page 1590, indicates 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.
It is our position that despite the incorporation of
seasonal and holiday motifs and the information provided
concerning the sales figures for these plates, the plates are not
articles which, as a whole, are traditionally used or associated
with Mother's Day or Christmas. Specifically, the latter two
plates are not akin to Christmas stockings, nativity scenes, yule
logs or any of the other items mentioned in the ENs.
Furthermore, the fact that the plates have "Mother's Day
1991", "1992" and "Christmas" written on them does not turn them
into items traditionally associated with Mother's Day and
Christmas. Rather, the entire article must be traditionally
associated with a a particular festival. See, Headquarters
Ruling Letter 088207, dated June 4, 1991. Thus, the motif,
advertising and selling period are not dispositive of the plates'
classifications.
Moreover, subheading 9505.10.30, HTSUS, does not encompass
the "Nativity Plate." The language of the subheading
specifically provides for "[n]ativity scenes and figures
thereof". It is our position that the provision was intended to
cover three dimensional representations of nativity scenes. It
was not meant to encompass decals or flat renditions of the
nativity scene that may be affixed to an article that, otherwise,
in its entirety, would not be considered festive. Therefore, the
"Nativity Plate" is not classified in subheading 9505.10.30,
HTSUS.
Heading 6913, HTSUS, provides for "[s]tatuettes and other
ornamental ceramic articles." EN 69.13, page 923, provides that
heading 6913, HTSUS, covers the following:
(A) 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, haut or bas reliefs,
and other figures for interior or exterior
decoration; ornaments (including those forming
parts of clock sets) for mantelpieces, shelves,
etc., (animals. symbolic or allegorical figures,
etc.); sporting or art trophies; wall ornaments
incorporating fittings for hanging (plaques,
trays, plates); medallions; firescreens;
artificial flowers, fruit, leaves, etc.; wreaths
and similar ornaments for tombs; knick-knacks for
shelves or domestic display cabinets.
* * * *
(C) Articles, other than tableware and domestic articles,
of the kind used for ornamenting or decorating the
household, office, etc. For example, smokers' sets,
jewel cases, cachou boxes, cigarette boxes, perfume
burners, ink-stands, book-ends, paper weights and
similar desk furnishings and picture frames.
The subject plates are ornamental and decorative and they
are akin to exemplars listed in the above ENs to heading 6913.
Therefore, the plates are classified in heading 6913, HTSUS.
Inasmuch as the plates are made of porcelain, they are classified
in subheading 6913.10.50, HTSUS, which provides for "[s]tatuettes
and other ornamental ceramic articles: [o]f porcelain or china:
[o]ther, [o]ther.
HOLDING:
The porcelain plates are classifiable in subheading
6913.10.50, HTSUS, which provides for "[s]tatuettes and other
ornamental ceramic articles: [o]f porcelain or china: [o]ther:
[o]ther. The rate of duty is 9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division