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HQ 964805




April 10, 2001

CLA-2 RR:CR:GC 964805 nel/JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.10.50

Mr. Floyd Sirico
Rogers & Brown Custom Brokers, Inc.
P. O. Box 20160
Charleston, SC 29413-0160

RE: NY G83712 revoked; porcelain demitasse (cup) and saucer set

Dear Mr. Sirico:

This is in reference to your letter of December 13, 2000, to Customs National Commodity Specialist Division, on behalf of Gordon International Services, Inc., concerning the classification of a decorative teacup and saucer under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for reply.

In preparing our response, we have reviewed the decision in NY G83712 issued to you on November 17, 2000, in which the subject porcelain demitasse and saucer set was classified as tableware under subheading 6911.10.80, HTSUS. The information you supplied by letter dated December 13, 2000, significantly changed the facts on which ruling NY G83712 was based. Therefore, the classification of the merchandise provided in NY G83712 no longer reflects the view of Customs.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on February 28, 2001, in Vol. 35, No. 9 of the Customs Bulletin, proposing to revoke NY G83712 and to revoke the treatment pertaining to a porcelain demitasse (cup) and saucer set. No comments were received in response to the notice.

FACTS:

The merchandise is described in NY G83712 as a porcelain demitasse and saucer set, with the demitasse measuring approximately 2 ¼” across its open top diameter and the saucer measuring about 4 ¼” in diameter. The demitasse has an elegantly designed looped handle. The exterior of the set depicts a green colored design, bordered with gold-colored bands. The set is stated to be valued at $2.80 per dozen.

You claimed the merchandise was an ornamental cup and saucer. Customs, based on the information you originally provided, found the merchandise to possess a decorative surface but principally designed for use as a utilitarian demitasse and saucer, which was classifiable as tableware or kitchenware under subheading 6911.10.80, HTSUS.

Your letter of December 13, 2000, provided the following additional information:

The lead content of the paint on these teacups are (sic) too high to be approved by FDA. All these cups are clearly marked NOT FOR FOOD USE and are marketed as candleholders. Their only method of marketing this product is strictly for decorative use, because they are not FDA approved and cannot be marketed as tableware.

This information affects the utilitarian nature of the demitasse and saucer at issue.

A sample of the merchandise was not provided to us with the request for reconsideration.

ISSUE:

Whether the subject porcelain demitasse (cup) and saucer set is properly classifiable as porcelain tableware or kitchenware under subheading 6911.10, HTSUS, or as an ornamental ceramic article under subheading 6913.10, HTSUS.

LAW & ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). 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.

In interpreting the HTSUS, the Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, may be used. The ENs, although not dispositive or legally binding, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The HTSUS subheadings under consideration for the classification of the porcelain demitasse and saucer set are as follows:

6911.10: Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware.

6913.10: Statuettes and other ornamental ceramic articles: Of porcelain or china.

Decorated tableware and other domestic articles which serve a useful purpose no less efficiently than their plainer counterparts, are classified in heading 6911 or 6912, HTSUS, rather than in heading 6913, HTSUS. See EN 69.13(B).

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).

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).

The instant demitasse cup and saucer, similar to cups and saucers in issue in B&O, are not used chiefly for serving coffee or other liquids, but their chief use is for display as ornaments. Merely because one can drink from the cups and saucers does not establish the chief use thereof. B&O at 5. The B&O court held that certain demitasse cups and saucers of comparatively small size, sold at a low price, and used chiefly for display as ornaments, were classifiable, not as tableware, but as ornamental articles.

Indeed, it is the decoration of the instant demitasse and saucer set that impairs its utilitarian value. Based on the information provided, the paint used to decorate the cup, marked NOT FOR FOOD USE, has a sufficient quantity of lead to prohibit its sale as tableware. As such, it is unfit for the purpose of holding a beverage for human consumption. Therefore, the decorated demitasse and saucer set has no useful purpose as a cup and saucer of “tableware” and may be considered primarily ornamental.

It must be noted that not all demitasse cups and saucers should be considered “ornamental.” Similar demitasse cups and saucers brought in chiefly for drinking rather than exhibiting would be described as “tableware.” See B&O 7-8, in which the court made clear that this was not a ruling that all demitasse cups are outside the category of “tableware.”

The instant demitasse cup and saucer set, marked “not for food use,” marketed as a candleholder, has no utility value as a cup and saucer and does not belong to the class of articles which is chiefly used upon the table for the service of meals, therefore, it cannot be classified as tableware under subheading 6911.10.80, HTSUS. The instant set is wholly ornamental and as such belongs to the class of novelty articles, chiefly used for display or decoration, under subheading 6913.10.50, HTSUS.

HOLDING:

The porcelain demitasse (cup) and saucer set is classifiable as an ornamental article under subheading 6913.10.50, HTSUS, which provides for: Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.

EFFECT ON OTHER RULINGS:

NY G83712 dated November 17, 2000, is hereby REVOKED.

Sincerely,

John Durant, Director

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