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HQ 951621


August 14, 1992

CLA-2 CO:R:C:M 951621 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.48

District Director
United States Customs Service
909 First Avenue - Room 2039
Seattle, WA 98174

RE: Protest No. 3001-92-100165; festive articles; decorated ceramic trivets; heading 9505; Explanatory Note 95.05; Headquarters Ruling Letters 089651 and 089332

Dear Sir:

The following is our response to the Protest and Request for Further Review No. 3001-92-100165, dated February 18, 1992, concerning the classification of cork-backed ceramic trivets under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Samples of the cork-backed ceramic trivets were submitted for our examination. The trivets come in four different designs. The first trivet is decorated with a flying reindeer adorned with bells, candy canes and ornaments. The reindeer has two children on its back who are clothed in winter attire. The second trivet is decorated with poinsettias. The third trivet is decorated with holly on a red background. The fourth trivet depicts a rocking horse with a holly wreath around its neck.

Upon importation, the trivets were classified in subheading 6912.00.48, HTSUS, which provides for "[c]eramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: [t]ableware and kitchenware: [o]ther: [o]ther: [o]ther: [o]ther." The rate of duty is 11.5% ad valorem.

The protestant contends that the ceramic trivets are 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." The rate of duty is 5.8% ad valorem.

ISSUE:

Are the ceramic trivets classified as other ceramic tableware and kitchenware in subheading 6912.00.48, HTSUS, or as other articles for Christmas festivities in subheading 9505.10.50, HTSUS?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 9505, HTSUS, provides for, inter alia, festive, carnival or other entertainment articles. 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.

Articles classifiable in heading 9505, HTSUS, tend to serve no other function than decoration.

The protestant contends that the ceramic trivets are festive articles classifiable in heading 9505, HTSUS. In support of his position the protestant argues that the trivets are decorated with Christmas motifs and colors and they are imported for sale during the Christmas holidays.

These trivets are analogous to other items previously ruled on by Customs. For example, in Headquarters Ruling Letter (HRL) 089651, dated September 11, 1991, Customs dealt with the classification of plastic napkin rings decorated with red and gold poinsettias and red berry holly. Customs held that the napkin rings served a utilitarian rather than decorative function and that even with the incorporation of the holiday motif, they were not classified as festive articles. The napkin rings were classified in subheading 3924.10.50, HTSUS, as other tableware and kitchenware of plastics. HRL 089332, dated August 26, 1991, dealt with the classification of refrigerator magnets that were decorated with different holiday motifs, including the face of Santa Claus, a Christmas tree, two hugging bears and overlapping hearts. Customs held that, despite the incorporation of the holiday motifs, these magnets were neither traditionally used nor associated with Christmas festivities or Valentine's Day, in particular. Therefore, the magnets were not classified as festive articles in heading 9505, HTSUS.

The ceramic trivets are not classifiable as festive articles in heading 9505, HTSUS, since they serve a utilitarian rather than decorative function. Moreover, despite the incorporation of seasonal and holiday motifs, these trivets are not traditionally used or associated with Christmas festivities. Therefore, the decoration of the trivets with these motifs does not bring them within the scope of heading 9505, HTSUS, and they are not considered festive articles. The ceramic trivets must be classified elsewhere.

Heading 6912, HTSUS, provides for "[c]eramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china." The ENs to heading 6912 state the following on page 922:

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....

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.

(B) Kitchenware such as stew-pans, casseroles of all shapes and sizes, baking or roasting dishes, basins, pastry or jelly moulds, kitchen jugs, preserving jars, storage jars and bins (tea caddies, bread bins, etc.), funnels, ladles, graduated kitchen capacity measures and rolling pins.

Dishes or cassroles that are hot will be placed on the cork-backed trivets so that the underlying table surface will not be destroyed. Therefore, the ceramic trivets are articles that will be used in the kitchen as tableware and they are classified in heading 6912, HTSUS. Specifically, they are classified in subheading 6912.00.48, HTSUS.

HOLDING:

The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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