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HQ 959643




July 16, 1997

CLA-2 RR:TC:MM 959643 JRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.50

David A. Eisen, Esq.
Seigel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901

RE: "Garfield Canister Collection;" Glazed ceramic kitchen canisters; Utilitarian kitchenware versus ornamental collectibles; Other ornamental ceramic articles other than of porcelain or china; Heading 6913; EN 69.13(B); Principal Use, Class or Kind, Additional U.S. Rule of Interpretation 1(a); Lenox Collections v. U.S.; HQs 958477, 958999

Dear Mr. Eisen:

You requested, on behalf of your client, MBI, Inc., a ruling from the Customs National Commodity Specialist Division, New York, by a letter dated July 17, 1996, regarding the proper classification of four glazed ceramic kitchen canisters made in China. This ruling request (A85799) has been referred to this office for reply. You supplemented your request with additional information by letters dated November 12, 1996, and December 9, 1996. An advertisement with a color photograph and a sample of the four prototype canisters were submitted for our review.

FACTS:

The merchandise consists of four highly decorated and glazed ceramic canisters, with each depicting a different shop on an imaginary "Main Street." The canisters are labeled "Garfield's Bakery," "Odie's Grocery," "Arlene's Cafe" and "Pooky's Flowers." Each canister is handcrafted in that it possesses some handpainted elements, such as each "Garfield" character and some "architectural" or interesting details of each scene, along with colorful detailed decals which have been adhered to all four sides of the canisters and the removable tops ("roofs"). The colored pictorial advertisement states that canisters "hold 72 ounces, 56 ounces, 32 ounces and 20 ounces, respectively (9, 7, 4 and 2.5 cups)," as in typical flour, sugar, coffee and tea canisters. The set of four canisters is priced at $168, plus applicable sales tax and shipping and handling.

The product will be available for sale exclusively through mail order from MBI, Inc., a nationally recognized supplier of fine collectibles, as a Danbury Mint exclusive. The "Garfield Canister Collection" will be marketed, sold and purchased and sold principally to "Garfield the Cat" collectors as a limited edition, collectible set of "original artwork by Garfield's creator, Jim Davis." A certificate of registration is included with the purchase of the "Garfield Canister Collection" and attests to the ownership and official authorization of the product by Jim Davis, the Garfield creator. Each canister is to possess a distinct serial number for this limited edition (a maximum of 10,000 sets to be produced). The final version of each canister is said to have a decal containing the Danbury Mint copyright fired into the bottom.

The provisions under consideration are as follows:

6912 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:
Tableware and kitchenware:
Other:
Other:
Other:
6912.00.48 Other...10.5 percent ad val.

6913 Statuettes and other ornamental ceramic articles: Of porcelain or china:

6913.90 Other:
Other:
6913.90.50 Other...6.4 percent ad valorem

ISSUE:

Whether the kitchen canisters are of the class or kind of "collectibles," that is, "other ornamental ceramic articles, other than of porcelain or china" under subheading 6913.90.50, or utilitarian storage "ceramic kitchenware ... other than of porcelain or china" under subheading 6912.00.48, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to the HTSUS, although not dispositive, provides guidance in understanding the scope of each heading of the Harmonized System as well as the GRIs, and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 69.13 states in part that heading 6913 does not include articles falling in more specific headings of the Nomenclature even if they are suited by reason of their nature or finish for decorative use.

EN 69.13(B), however, provides that:

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.

You contend that the canisters are properly classified under heading 6913, HTSUS, the provision for statuettes and other ornamental ceramic articles, based on the fact that they are purchased for their ornamental character and used for decorative purposes, and not for use in storage of food preparations materials. You maintain that the canisters are collectibles, principally intended to be displayed on a counter top or shelf, and that any usefulness is subordinate to their ornamental character in light of their highly ornate and precisely detailed construction, which significantly limits and impairs any utilitarian value. You also state that the claimed classification is in accord with Lenox Collections v. United States, 20 CIT , Slip Op. 96-30 (Feb. 2, 1996), in which the court held that a set of twenty-four small porcelain containers called the "Spice Village," with each one shaped like a Victorian house and held within a hardwood rack, were of the class or kind of goods principally used for ornamental and decorative purposes under subheading 6913.10.50, HTSUS, rather than utilitarian kitchenware classifiable under heading 6911.

Headings 6911, 6912 and 6913, HTSUS, have been held to be a use provision both by the courts and Customs. See Lenox Collections v. United States, 19 CIT , Slip Op. 95-36 (Mar. 9, 1995); HQ 958999. Additional U.S. Rule of Interpretation 1(a), HTSUS, states that in the absence of special language or context which otherwise requires, 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. The instant canisters will thus fall under heading 6912 if they belong to the class or kind of articles principally used as kitchenware or under heading 6913 if they belong to the class or kind of goods principally used as ornamental articles.

The Lenox court (1996) in its analysis referred to Additional U.S. Rule of Interpretation 1(a) and the need to focus on the principal use of the class or kind of goods to which an import belonged, not the principal use of specific import, citing Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 1178, 839 F. Supp. 866, 867 (1993).

The Court of International Trade has established various factors, which are indicative but not conclusive, to apply when determining principal use within a particular "class or kind." They include: the general physical characteristics of the merchandise, the expectation of the ultimate purchasers, the channels of trade in which the merchandise moves; the environment of the sale (i.e., accompanying accessories, manner in which the merchandise is advertised and displayed), and the use of the merchandise 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. See Lenox (1996), supra; Hartz Mountain Corp. v. United States, 19 CIT , 903 F. Supp. 57, 59 (1995); Kraft, Inc. v. United States, 16 CIT 483 (1992); G. Heileman Brewing Co., Inc. v. United States, 14 CIT 614, 620 (1990); and United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert. denied, 429 U.S. 979 (1976). As a general rule, a glass article's "physical form" will indicate its principal use and thus to what class or kind it belongs. Should, however, an exception arise when an article's physical form does not indicate to what class or kind it belongs or its physical form indicates it belongs to more than one class or kind, Customs considers the other enumerated principal use criteria set forth in the above-cited court cases. See HQ 958477.

We must review the above Lenox factors to the facts presented since the physical form of the canisters may not limit it to one class or kind. In this instance, the canisters' physical characteristics are very similar to functional canisters because they are capable of holding flour, sugar, coffee and tea in the same quantities as their plainer counterparts, and that the final version of the canisters is said to possess snug-fitting seals on the roofs, an indication of their functionality.

While the physical form is the same as other utilitarian kitchen canisters, what distinguishes the instant canisters from its plainer, functional counterparts, however, is that the decorations applied to the canisters themselves are of the extremely fragile nature because the detailed decals appear to have been applied to the canisters after its final firing and glazing, and as such, are likely to be removed easily upon repeated hand washing. This factor limits the canisters' usefulness because although the highly ornate and colorful decals are what makes the canisters specifically ornamental and desirable, it is also the very reason which makes it generally unsuitable for frequent handling or use. The canisters are not labeled as to their contents but as to the specific "Garfield" cartoon character's shop, which makes them more ornamental. The ceramic has been decorated and glazed to give the commercial appearance of porcelain even though it is not porcelain as were the spice jars in Lenox. We agree with the importer that the nature of the applied decorations on the canisters limits and impairs their usefulness as ordinary kitchenware and, in this case, its usefulness as kitchen canisters is subordinate to its ornamental character as provided in EN 69.13(B) and as was the case in Lenox, supra.

We find that the other Lenox factors are present here as follows. The ultimate expectation of the purchaser is to decorate the kitchen even though the advertisement suggests the functional nature of the merchandise. The usage of the merchandise for its usual function is low because of its fragile nature and its cost. The price of this set is significantly more expensive than other canisters used for the function of holding and storing food preparation materials. The price of $168 is substantially more than is a comparable plain canister set sold at retail. In the case where a purchaser pays a significantly higher price for decorated articles over plainer functional counterparts, the practicality of use (that is, that the articles will be used for their intended function) declines. The ultimate purchasers are said to be people who are willing to pay much more for a collectible and decorative set than the average less expensive canister set; the economic practicality of so using the import as a canister to hold food preparation materials is low. Moreover, the channel of trade and the environment of sale are the same as in Lenox case. The importer is a well-known national supplier of fine collectibles and the Danbury Mint is a recognized collectible manufacturer in the trade. The product is not sold through retail stores or kitchenware speciality shops, but exclusively through mail order targeting a specific audience. It is advertised in the Sunday newspaper magazine (e.g., Parade) and women's magazines, and the sale is effectuated with the use of a subscription coupon. The purchaser will receive a "certificate of registration" for the serial numbered Collection. Based on the evidence presented and our application of the Lenox factors thereto, the principal use of these canisters appears to be of an ornamental class or kind rather than of a utilitarian class.

HOLDING:

The "Garfield Canister Collection" is of the class or kind of goods principally used for ornamental and decorative purposes as based on the above discussion under heading 6913, HTSUS. The canisters, accordingly, are properly classified under subheading 6913.90.50, HTSUS.

Sincerely,

John Durant, Director
Tariff Classification

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