CLA-2 RR:CR:GC 962671 JGB
Port Director
U.S. Customs Service
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center
Room 761
New York, NY 10048-0945
RE: Protest 1001 98 102598; Ceramic Tableware
Dear Director:
This is a decision on Protest 1001 98 102598 against your decision in the classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated on June 26, 1998, and the protest timely filed on July 23, 1998. Our decision follows:
FACTS:
The merchandise consists of the following seven ceramic tableware items:
Item G4377, Snowman Pitcher and Mug Combo, also identified as the Solo Set, is described as a handpainted, embossed majolica-style snowman, consisting of a 10 oz. pot with a 9 oz. cup. This three-dimensional composite good consists of a snowman teapot with a handle and spout. The snowman’s head appears to form the removable top to the pot. The pot rests on a tea cup, also with handle, that together forms a complete snowman with the pot. There appear to be snowmen “feet” attached to the bottom of the cup. The two components are adapted one to the other and are mutually complementary, so that together they form a whole which would not normally be offered for sale in separate parts. The pot is designed to brew just one cup of tea and the cup will be used to drink the tea once brewed. Also, the pot can be placed on the top of the cup to help keep the tea warm after it has been poured.
Item G4378, 16 oz. 3D Snowman Mug, is pictured as an ordinary beverage mug with the stated capacity. The exterior of the cylinder is slightly raised in a type of bas relief to highlight the Snowman pattern design. The design is of a snowman with a candy cane at its front. The handle is made from the scarf portion of the design.
Item G4379, Snowman Cookie Plate, is described as a handpainted, embossed majolica-style snowman measuring 11 inches by 9 inches. It is painted to show a snowman with a stocking cap, muffler and possibly holding a “snowman” cookie and a candy cane, all in an essentially two-dimensional representation. The article is utilitarian and designed to serve cookies or some kind of food product.
Item G4380, Snowman design 24 oz. Teapot, is also described as a handpainted, embossed majolica-style article. The external appearance is almost exactly the same as G4377, except for the fact that this one is a teapot and the other is a combination of two components divided horizontally in the middle. Item G4380 has one handle formed from the scarf of the snowman, while G4377 has a handle formed from the scarf for both the top pot and the bottom cup. Otherwise, G4380 is a clear three-dimensional representation of a snowman.
Item G4381, Snowman Candy Cane Holder, is described as a handpainted, embossed majolica-style Candy Cane Server, snowman measuring 13 inches by 4 inches by 6 inches, formed by two snowmen positioned at each end of the 13 inch “trough” in which candy canes would be placed. The snowmen are 6 inches in height, yet the “trough” separating the two snowmen appears to be about an 1½ inch high.
Item G4382, Snowman Cookie Jar, is described as a handpainted, embossed majolica-style snowman measuring 8½ inches by 9½ by 9 inches high. This is a three-dimensional earthenware article with a hollow inside designed to accommodate cookies or similar food products. From the black and white photocopy provided, it appears to be two snowmen resting back to back to form the bulky body of the cookie jar. The top or head of the snowmen appears to be designed to be removed to permit access to the contents of the jar. The snowmen are decorated with top hat or stocking cap, and what may be colorful holiday-related images such as a candy cane and snowflakes.
Item G4383, Snowman Platter, is described as a handpainted embossed majolica-style snowman article measuring 19½ inches by 15½ inches. Very similar in style and concept to Item G4379, it depicts three snowmen, one holding a gingerbread man, another holding Christmas tree cookies and a third with a peppermint candy piece. The platter has handles decorated with a candy stripe. The snowmen figures are slightly raised and the article is apparently suitable for serving cookies or other sweets. Like item G4379, the figures and designs are all in an essentially two-dimensional representation
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 subheadings 6912.00.4100, 6912.00.4400, 6912.00.4500, 6912.00.4800, and 6912.00.4810, HTSUS, depending on design.
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 cookie plate, platter, cookie jar, candy cane holder, teapot, mug, and teapot and mug combination 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, whether they hold candies, cookies, tea, or candy canes.
Items G4377, G4380, G4381, and G4382, are three-dimensional representations of a snowman. 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. In view of the Carborundum evidence presented, and the type of decoration associated with the snowmen, items G4377, G4380, G4381, and G4382, have been demonstrated to be within the class of festive articles, classifiable in subheading 9505.10.50, HTSUS.
Item G4378, the Snowman Mug, is a functional beverage mug that does not have a three-dimensional representation of an accepted symbol on it. As presented, it appears as an embellished or decorated beverage mug that does not lose its identity as a mug by virtue of its bearing snowman decorations. As such, it is not within the class of festive articles of heading 9505 and will be classified as liquidated in subheading 6912.00.4400, HTSUS, the provision for Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Mugs and other steins.” See HQ 961838, dated March 18, 1999, for similar treatment of a mug.
Items G4379 and G4383, the Snowman Cookie Plate and Snowman Platter, while each bearing an “accepted symbol” of the Christmas holiday have not thus been transformed into festive articles of heading 9505. The articles are essentially two-dimensional food serving platters which retain this identity, even after being painted with “snowman” designs and motifs. The articles are decorative; however, Customs views them not as a decorative articles used to decorate (or ornament) a house during a festive holiday, but rather as functional articles which have the primary characteristic of being suitable for serving food. In contrast, Customs has regarded certain Christmas, Easter, and other holiday commemorative plates which were specifically not designed to serve food and which were intended to be displayed on a shelf, mantel, or wall to decorate a house, as festive articles of heading 9505. Accordingly, because Items G4379 and G4383 are not eligible for classification in heading 9505, they are
classified in heading 6912, specifically, item G4379 in subheading 6912.00.4810, HTSUS, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Other, Suitable for food or drink contact” and item G4383 specifically in subheading “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: . . . platters or chop dishes valued over $35 per dozen; . . . .”
HOLDING:
Items G4382, G4381, G4377, and G4380 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.”
Item G4379 is classified in heading 6912, HTSUS, specifically in subheading 6912.00.4810, HTSUS, the provision for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Other, Suitable for food or drink contact.”
Item G4383 is classified in heading 6912, HTSUS, specifically in subheading 6912.00.4500, HTSUS, the provision for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: . . . platters or chop dishes valued over $35 per dozen; . . . .”
Item G4378 is classified in heading 6912, HTSUS, specifically in subheading 6912.00.4400, HTSUS, the provision for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and Kitchenware: Other: Other: Other: Mugs and other steins.”
The protest should be DENIED, except to the extent that entries liquidated as indicated above result in a partial allowance.
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