CLA-2 RR:CR:GC 966040 AML
Port Director
U.S. Customs Service
P.O. Box 17423
Washington, D.C. 20041
RE: Protest 5401-02-100044; Porcelain reproductions of antique candle
stands, vases, urns and centerpieces
Dear Port Director:
This is our decision on Protest 5401-02-100044, filed by a broker on behalf of the protestant, David Michael, Inc., against your decision in the classification of various porcelain reproductions of antique candle stands, vases, urns and centerpieces under the Harmonized Tariff Schedule of the United States (HTSUS). Photocopies were provided for our consideration.
FACTS:
The articles at issue consist of porcelain candle stands, centerpieces, urns and vases. The importer claims that all of the items are created from molds prepared from the original works by professional artists. No evidence was presented to corroborate this assertion.
The protestant states that the previous broker erroneously entered the articles under subheading 6911.10.80, HTSUS. The protestant now contends the articles are classifiable under subheading 6913.10.10, HTSUS, which provides for porcelain or china statues, statuettes and handmade flowers produced by professional sculptors and valued over $2.50 each. You classified the articles under subheading 6911.90.00, HTSUS, which provides for other household articles of porcelain or china.
The articles were entered on March 19, 2002 and the entry was liquidated on June 21, 2002. The protest was timely filed on September 18, 2002.
ISSUE:
Whether the subject articles are classified under heading 6911, HTSUS, as ceramic tableware, kitchenware and other household articles, or under heading 6913, HTSUS, as statuettes and other ornamental ceramic 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 GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
6911 Tableware, kitchenware, other household articles and toilet articles of porcelain or china:
6911.10 Tableware and kitchenware:
Other:
6911.10.80 Other.
* * *
6913 Statuettes and other ornamental ceramic articles
6913.10 Of porcelain or china:
6913.10.10 Statues, statuettes 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
6913.10.50 Other.
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs for heading 6911 are provided for in the ENs for heading 6912, HTSUS (that is, the EN for heading 6911 states “[s]ee the Explanatory Note to heading 69.12.”). The ENs to heading 6912 provide, in pertinent part, that:
Tableware, kitchenware, other household articles and toilet articles are classified in heading 69.11 if of porcelain or china, and in heading 69.12 if of other ceramics such as stoneware, earthenware, imitation porcelain (see General Explanatory Note to sub-Chapter II).
The headings therefore include:
(A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, spoons and serviette rings.
* * *
The headings exclude:
* * *
(c) Statuettes and other ornamental articles of heading 69.13.
The ENs to heading 6913 provide, in pertinent part, that:
This heading covers a wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments).
* * *
(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.
* * *
(3) Purely ornamental table-bowls, vases, pots, jardinières.
(B) Tableware and other domestic articles only if the usefulness of the articles is clearly subordinate to their ornamental character, for example, trays moulded in relief so that their usefulness is virtually nullified, ornaments incorporating a purely incidental tray or container usable as a trinket dish or ashtray, miniatures having no genuine utility value, etc. In general, however, tableware and domestic utensils are designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. If, therefore, such decorated articles serve a useful purpose no less efficiently than their plainer counterparts, they are classified in heading 69.11 or 69.12 rather than in this heading.
(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, paperweights and similar desk furnishings and picture frames.
In Headquarters Ruling Letter (HQ) 964472, dated February 8, 2002, we made the following observations and findings concerning articles classifiable under heading 6911, HTSUS:
In HQ 084122, dated January 9, 1990, Customs dealt with the classification of sculptured porcelain molds. This case involved the interpretation of Heading 6911, which provides for tableware, kitchenware, other household articles and toilet articles, of porcelain and china, and Heading 6913. HQ 084122 stated that Heading 6911, HTSUS, is a "use" provision. U.S. Rule of Interpretation 1(a) states the following:
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.
According to HQ 084122, for an article to be classified within Heading 6911, HTSUS, it must be principally used as tableware or kitchenware.
The rule of in pari materia is pertinent in the instant case. This rule provides that where two provisions are essentially the same, they are to be construed in essentially the same manner. Heading 6911, HTSUS, and Heading 6912, HTSUS, are essentially the same provisions, the only difference being that Heading 6911, HTSUS, covers tableware, kitchenware, etc. . . , made of porcelain or china, while Heading 6912, HTSUS covers the same article made of other than porcelain or china. As a result, since Heading 6911, HTSUS, is considered a "use" provision, Heading 6912, HTSUS, would also be considered a "use" provision. Therefore, for the instant steins to be classified in Heading 6912, HTSUS, their principal use would have to be as tableware and kitchenware. An examination of the physical characteristics of the steins at issue, as well as evidence presented of the use of the steins by beer stein collectors, Customs is convinced that the steins in question are principally used for ornamenting or decorating and not as tableware. Therefore, they are excluded from classification as tableware within Heading 6912, HTSUS.
Heading 6913, HTSUS, covers a wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments. See EN 69.13. This heading covers articles, which have no utility value but are wholly ornamental, as well as articles whose only usefulness is to support or contain other decorative articles or to add to their decorative effect. EN 69.13(A).
In HQ 964805, dated April 10, 2001, we stated that:
Additionally, heading 6913, HTSUS, covers tableware and other domestic articles only if the usefulness of the articles is clearly subordinate to their ornamental character. In general, tableware and domestic utensils are designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. See EN 69.13(B). Congress intended for “tableware” to provide for only such articles as are chiefly used upon a table for the service of meals, and that term was not intended to cover novelty articles. See United States v. The Baltimore & Ohio R.R. Co., 47 C.C.P.A. 1, 3 (1959) (B&O).
Applying Part B of the EN to Heading 6913, we find that an examination of the centerpieces, urns, vases and candle stands and the evidence presented support a conclusion that the subject articles are neither designed to serve a useful purpose and neither is their elaborate decoration secondary to their usefulness. The articles are modeled from and will be marketed and sold as collectibles. The packing list (#202 072) provided in the file indicates that the invoice contains “porcelain ware (for decorative only) (sic) ormolu-mounted” [emphasis added]. Thus, the articles cannot be classified under heading 6911, HTSUS.
Congress has indicated that earlier tariff rulings must not be disregarded in applying the HTSUS. The conference report to the 1988 Omnibus Trade Bill, 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 remains 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).
In HQ 951363, dated April 27, 1992, we made the following observations and conclusions concerning the prerequisite characteristics and proof required for articles to be classified under heading 6913, HTSUS:
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 and 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."
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 HTSUS, particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTSUS. 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.
Neither the Court of International Trade nor Customs has issued a decision that changes the principles enunciated in HQ 951363. We hereby reaffirm those principles and accordingly, by application the principles contained therein, find that the articles cannot be classified as the protestant suggests. Nevertheless, the articles will be reclassified as a result of this protest. The articles are classified under subheading 6913.10.50, HTSUS.
HOLDING:
The various porcelain reproductions of antique candle stands, vases, urns and centerpieces are classified in subheading 6913.10.50, HTSUS, which provides for other ornamental ceramic articles, other, other.
The protest should be GRANTED.
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 sixty (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 (60) 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,
Myles B. Harmon, Director
Commercial Rulings Division