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HQ 962536




June 20, 2000

CLA-2 RR:CR:GC 962536 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.5020

Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Ave.
New York, NY 10167-3397

RE: Revocation of NY D84481; Rudolph and Santa Ceramic Chip and Dip Set; Midwest of Cannon Falls, Inc. v. United States

Dear Mr. Murphy:

This is in response to your letter of January 22, 1999, on behalf of Cardinal, Inc., which requests reconsideration of New York Ruling Letter (NY) D84481, issued to you on November 27, 1998, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a Rudolph and Santa Ceramic Chip and Dip Set.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice was published on May 10, 2000 in the Customs Bulletin, Volume 34, Number 19, proposing to revoke NY D84481, issued November 27, 1998. No comments were received in response to this notice.

This letter is to inform you that D84481 no longer reflects the view of the Customs Service concerning the classification of the Rudolph and Santa Ceramic Chip and Dip Set and that the following reflects our position for this product.

FACTS:

The Rudolph and Santa Ceramic Chip and Dip Set (style # G5920) consists of the following:
a ceramic serving chip dish, measuring approximately 14 inches in length by 3 inches at its highest point. Its exterior surface possesses a Christmas tree, reindeer and candy cane motif in relief with a reindeer-like figurine, measuring about 4¼ inches high, that is permanently affixed near the side of the dish.
a ceramic sleigh-shaped dip dish, measuring about 5¼ inches long by 3 inches at its highest point, that is decorated with a motif of candy canes and holly leaves with berries. There is also a Santa figurine, measuring approximately 4¼ inches high, which is standing adjacent to the sleigh.

Information provided noted that the Rudolph and Santa Ceramic Chip and Dip Set is “marketed and sold through Christmas stores, general merchandise stores that carry seasonal articles, and is also sold through a 1998 holiday catalog.”

ISSUE:

Whether the Rudolph and Santa Ceramic Chip and Dip Set is classified in heading 6912, HTSUS, as other ceramic tableware, or in heading 9505, HTSUS, as a festive article.

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.

Heading 6912, HTSUS, provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:.” Subheading 6912.00.4810, HTSUS, HTSUS, provides for “Tableware and Kitchenware: Other: Other: Other: Other, Suitable for food or drink contact.”

Note 2(k) to Chapter 69, HTSUS, which covers heading 6912, provides that this chapter does not cover “Articles of chapter 95 . . . .“ Thus, if the subject goods are classifiable under heading 9505, then Note 2(k) to Chapter 69 will preclude classification under heading 6912 and necessitate classification under Chapter 95.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10, HTSUS.

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 known as “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.

An initial issue here is whether the Rudolph and Santa Ceramic Chip and Dip Set constitutes a set for tariff classification purposes, as determined in NY D84481. That decision, in essence, indicated that the serving dish did not qualify as a festive article because it did not constitute a three-dimensional representation of an accepted symbol of the particular holiday; although the sleigh-shaped dip dish with the Santa figurine, as a recognized symbol of the Christmas holiday, did bring that component of the set into the class of festive articles. The ruling stated that “the set as a whole is not a three-dimensional representation of a festive motif, thereby precluding consideration of classification under subheading 9505.10.5020.” That decision regarded both articles as a set put up for retail sale and determined that the non-festive component provided the essential character, thereby requiring a classification of the set as ceramic tableware.

We think that the better view of the articles (regardless of the designation provided by the importer) would be as a composite good. We understand that the sleigh/Santa dip dish fits into a slight depression on the chip plate, reinforcing the obvious conclusion that these are two components adapted one to the other which are mutually complementary, so that together they form a whole which would not normally be offered for sale in separate parts. The sleigh/Santa dip dish is identified as providing the essential character of the composite good. As such, it serves to mark or distinguish the good and determine its use. The sleigh/ Santa component is three-dimensional, as well as being functional, and its use, to hold a dip, gives a reason to use the whole article and identifies the role of the component in relation to the use of the good. See General Rules of Interpretation 2, 3(a), 3(b); EN (IX) to Rule 3(b) (composite goods); and EN (VIII) to Rule 3(b) (essential character).

In considering the Midwest standards, the Rudolph and Santa Ceramic Chip and Dip Set is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The set does appear to be a functional item used in the celebration of a festive occasion.

With respect to the general criteria set forth in Carborundum and further considered by the Court, we note that in terms of general physical characteristics, this both decorative and functional article has been made into festive article by the incorporation of three-dimensional festive images and could no longer be simply identified as a serving set for dips and chips.

The ultimate purchaser would have the expectation of using the article in connection with the celebration of Christmas season. The environment of the sale is established. The use of the article in the same manner as merchandise which defines the class is satisfied in that the article will be used only in connection with Christmas celebrations.

HOLDING:

The Rudolph and Santa Ceramic Chip and Dip Set is classified 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.”

NY D84481 is hereby revoked.

In accordance with 19 U.S.C.1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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