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HQ 962673




April 24, 2000

CLA2 RR:CR:GC 962673 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.4500; 6912.00.4810; 8205.51.3030; 9505.10.5020

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center
Room 761
New York, NY 10048-0945

RE: Protest 100198103262; Spreader Knives; Canapé Forks; Angel Ceramic Teapots

Dear Director:

This is a decision on Protest 100198103262, filed August 25, 1998, against your decision in the classification of various spreader knives, canapé forks, and two Angel Ceramic Teapots under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997, were liquidated from July 10 through July 24, 1998, and the protest timely filed on August 25, 1998.

FACTS:

The following 13 items, imported by Cardinal, Inc., are at issue in this protest:

Item #G4469 is described on the box as a “Stainless Steel Gourmet Spreader” and identified as “Poly Spreaders Snowman Design.” The package contains 4 spreaders each with a different snowman design. They measure approximately 4¾ inches in total length. The blade is made of steel and is about 2¼ inches long. The decorative handle is of molded plastic and presents a three-dimensional representation of a snowman decorated with Christmas-related items such as cookies and candy canes .

Item #G4006, of similar dimensions to #G4469, is a Christmas Tree Spreader, in a set of four, with handles that have an identical decorated Christmas Tree design.

Item #G4007, of similar dimensions to #G4469, is a set of 4 Christmas Carolers Spreaders, with handles that depict three dimensional Christmas Carolers in four different designs.

Item #G4754, of similar dimensions to #G4469, is a set of 4 identically designed spreaders with handles depicting gold colored light bulbs.

Item #G4755, of identical dimensions to #G4754, is a set of 4 identically designed spreaders with handles depicting various colored light bulbs.

Item #G4756, of similar dimensions to #G4469, is a set of 4 Worldly Santa Spreaders, with handles having three dimensional depictions of a Santa Claus head, each with a different colored cap.

Item #G4757, of similar dimensions to #G4469, is a set of 4 Santa’s Helper Spreaders, with handles having three dimensional depictions of Santa’s Helpers in four different designs, all of which resemble Santa.

Item #G4758, of similar dimensions to #G4469, is a set of 4 Party Animal Spreaders, with handles having three dimensional depictions of dogs dressed in Christmas-related whimsical costumes in four different designs.

Item #G4159, of similar dimensions to #G4469, is a set of 4 spreaders identified as “Christmas Instruments” with handles having three dimensional depictions of a French horn, a banjo, a viola, and a trombone, resting on a scroll of music.

Item #G4760, of similar dimensions to #G4469, is a set of 4 Snowmen Canapé Forks, with handles having three dimensional depictions of snowmen in four different designs, identical to item #G4469.

Item #G4762, of similar dimensions to #G4469, is a set of 4 identically designed canapé forks with handles depicting various colored light bulbs.

Item #G3773, is a porcelain teapot depicting a three dimensional angel holding a star. The body of the pot is hollow to accommodate 39 oz. of tea. The spout is a corner of the star. The angel’s head may be removed to add water and/or tea. The handle is at the angel’s back. It is valued at greater than $42 per dozen.

Item #G4087 identified as “Tea-Nee Angel” is a small porcelain teapot with an 8 oz. capacity, modeled on #G3773. It is valued at less than $42 per dozen.

.
You classified the teapots 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.”

You classified the spreaders and forks in subheading 8205.51.3030, HTSUS, the provision for “Handtools. . . not elsewhere specified or included; . . . base metal parts thereof: Other handtools . . . and parts thereof: Household tools, and parts thereof: Of iron or steel: Other (including parts), Kitchen and table implements.”

The protestant claims classification for each of the articles 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 subject articles are classified within heading 6912, HTSUS, with respect to the teapots, within heading 8205, HTSUS, with respect to the spreaders and forks, or within heading 9505, HTSUS, as festive articles.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, 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 Explanatory Notes (ENs) 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 GRIs.

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. Although the articles that are the subject of this protest are described by the headings in which the entries were liquidated, consideration must be given to relevant section and chapter notes.

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 ceramic teapots are classifiable under heading 9505, then Note 2(k) to Chapter 69 will preclude classification under heading 6912 and necessitate classification under Chapter 95.

Note 1(l) to Section XV, HTSUS, which covers heading 8215, provides that the section “does not cover: . . . (l) articles of Chapter 95.” Thus, if the knives and forks are classifiable under heading 9505, then Note 1(l) to Section XV will preclude classification under heading 8215 and necessitate classification under Chapter 95.

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.

With respect to the teapots, item #’s G3773 and G4087, the articles fail to fall within the class of festive articles because they are not associated with or used on a particular holiday. Angels are not recognized symbols of the holiday of Christmas because angels appear in a variety of settings outside the holiday. Even if an article depicting an angel is sold during the Christmas season and pictured in the Christmas catalog, that fact alone does not establish the connection with a particular holiday. In this connection, we note the existence of prime-time commercial television programs based on an angel theme as but one example of the frequency with which angels appear in popular culture. The particular angels depicted on this merchandise have no particular connection with Christmas. The pots make an attractive and interesting gift that would be useable all year, not for celebrating a holiday, but to add a decorative element to the home. New York Ruling Letter (NY) D83770, issued November 10, 1998, classified item # G3773 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: Cups valued over $5.25 per dozen,. . . and beverage servers valued over $42 per dozen.”

The spreader knives and forks are of a type described in Headquarters Ruling Letter (HQ) 961105, dated November 25, 1998. In that decision, the articles at issue were determined to be principally decorative and designed for use on the particular holiday of Christmas. We noted that “[w]hen used as intended, the knife blade would be inserted into the dip or other food product leaving only the three dimensional handle visible—an additional decoration to the host’s table.” That would be accurate for the instant spreaders and forks, although to a lesser extent for the forks. Therefore, having determined that the spreaders and forks are potentially eligible for classification in heading 9505, we look to the design of the three dimensional handles, to determine whether these articles are associated with a particular holiday. In most of the designs presented here, the claim of connection with the Christmas holiday is plausible, namely the Snowmen, the Christmas Trees, the Carolers, the “Worldly Santas”, the Santa’s Helpers, and the Party Animals. These three dimensional designs as indicated supra, either are, themselves, or incorporate recognized Christmas elements such as wrapped packages, Christmas wreaths, Christmas trees, Santa Claus and candy canes. These are item #’s G4469, G4006, G4007, G4756, G4757, G4758, and G4760. Not included are item #’s G4754, G4755, G4759, and G4762, in that they represent motifs of year-round suitability. There is no particular connection of music or musical instruments to Christmas. Likewise, so-called Christmas bulbs, are not automatically associated with Christmas, any more than are stars. These bulbs simply look like egg-shaped handles, particularly when of all silver or gold color.

Following our decision in HQ 961105, the indicated spreaders and forks at issue in this protest are classified 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.”

The Tea-Nee Angel Teapot, item #G4087, and spreaders and forks with non-festive designs as indicated, supra, are classified as entered. The Angel Teapot, Item #G3773, is classified in subheading 6912.00.4500, HTSUS, according to NY D83770, issued November 10, 1998.

HOLDING:

The protest should be DENIED, except to the extent that reclassification as indicated herein results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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