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HQ 965438




July 10, 2002

CLA-2 RR:CR:GC 965438 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.50

Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202

RE: Protest 1303-01-100203; Ceramic Mini-Mugs

Dear Port Director:

This is our decision regarding Protest 1303-01-100203, filed on behalf of A&A Global Industries, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain ceramic mini-mugs.

The protestant requests that the following protests, which it states involve “the same importer, the same merchandise, and the same issues, be included in this application for further review:” 1303-00-100277; 2704-01-100004; 2704-00-103165; and 2704-01-100005.

FACTS:

The file reflects the following. The six entries at issue were filed between July 10, 2000, and September 10, 2000. The entries were liquidated between May 25, 2001 and July 27, 2001. The protest was filed on September 4, 2001.

The mini-mugs were entered under subheading 9503.90.00, HTSUS. The six entries were liquidated under subheading 6913.90.50, HTSUS.

The protestant describes the mini-mugs as follows:

A&A Global’s mini mugs are adorned with children’s theme logos, such as sports teams and cartoon characters. The toy mugs are about an inch in height and are clearly not designed for the utility of drinking. The mini-mugs are always packaged inside plastic capsules and sold exclusively in vending machines. For display purposes only, the mugs are sometimes mounted on display cards placed in the vending machine to enable the purchaser to view their appearance and logo.

The protestant states that the retail price of the mini-mugs is generally 50 cents per mug. It states that the mini-mugs have no utility as drinking vessels due to their miniature size.

Samples have been supplied. Our measurement of the mini-mugs shows them to be approximately one and one-quarter inches in height. The submitted samples include two cardboard sheets with six mini-mugs affixed to each sheet. The mini-mugs show animals. At the bottom of each of the cardboard sheets is the following: “Collect All 8 Mugs!”

ISSUE:

What is the classification under the HTSUS of the mini-mugs?

LAW AND ANALYSIS:

We note initially that, with respect to five of the six entries at issue, the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1). With respect to the entry which was liquidated on May 25, 2001, the protest was not timely since the protest was filed more than 90 days after the date of liquidation of that entry.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

6913 Statuettes and other ornamental ceramic articles:

6913.90 Other:

Other:

6913.90.50 Other

9503 Other toys, reduced-size (scale) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

EN 69.13 provides in pertinent part as follows:

This heading 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 (e.g., garden ornaments). . . .
The heading covers:

(A) Articles which have no utility value but are wholly ornamental, and articles whose only usefulness is to support or contain other decorative articles or to add to their decorative effect, e.g., (1) . . . ornaments . . . for mantelpieces, shelves, etc. (animals . . . etc.) . . . knick-knacks for shelves or domestic display-cabinets. . . .
(C) Articles, other than tableware and domestic articles, of the kind used for ornamenting or decorating the household, office, etc. [All emphasis in original.]

EN 95.03 provides in pertinent part that: “This heading covers toys intended essentially for the amusement of persons (children or adults).” It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See, for example, HQ 964171 dated October 2, 2000. See also Additional U.S. Rule of Interpretation 1(a), HTSUS.

Note 2(k) to Chapter 69, HTSUS, provides that Chapter 69 does not cover articles of Chapter 95, e.g., toys. Therefore, if the subject mini-mugs are “toys,” they are not classified in heading 6913, HTSUS.

In NY D89217 dated April 5, 1999, Customs classified a ceramic mini-mug and saucer set in subheading 6913.10.20, HTSUS. The mug was one and one-quarter inches in height and the saucer was one and one-half inches in diameter. The ruling stated that: “These miniatures are intended for use as a display piece or as a collectible. They are not toys designed for amusement purposes.”

In HQ 950430 dated January 28, 1992, Customs classified a ceramic American eagle mini-stein (four and one-half inches in height and one and three-quarters inches in diameter) in subheading 6913.90.50, HTSUS.

As indicated above, the crucial inquiry here is whether the mini-mugs are toys within the meaning of heading 9503, HTSUS. To answer that inquiry in the affirmative, we must conclude that the mini-mugs are intended essentially for the amusement of children or adults, i.e., that they are designed and used principally for amusement.

As stated above, the cardboard sheet to which the samples are affixed contains the following language: “Collect All 8 Mugs!” This language is suggestive of the fact that the mini-mugs are collectibles.

More significantly, the protestant has not established that the mini-mugs are designed and used principally for amusement. There is no satisfactory evidence to suggest that the mini-mugs will be principally used for manipulative play or role play. With respect to manipulative play, we believe it is unlikely that parents will encourage handling of the mini-mugs by small children because the mini-mugs are breakable and potentially dangerous in light of their hard surface. With respect to role play, there is no evidence to suggest that the mini-mugs will be used by children for events such as birthday parties, tea parties, etc. Further, there is no evidence to suggest that the mini-mugs are inherently amusing.

The fact that the mini-mugs are sold in vending machines does not persuade us, nor does it necessarily suggest, that the mini-mugs are toys. Many items other than toys are sold in vending machines, e.g., collectibles, novelty items, candy, etc. No evidence is presented that the mini-mugs were ever classified under the HTSUS or the previous tariff as vending-machine toys.

Accordingly, we are not persuaded by the protestant that the mini-mugs are designed and used principally for amusement. Therefore, we find that they are not toys and are not described in heading 9503, HTSUS.

We concur with the protestant’s statement (see FACTS, above) that the mini-mugs are not useful as drinking vessels.

The mini-mugs are ornamental ceramic articles. They fall within the scope of the description of certain items in EN 69.13, excerpted above.

Accordingly, we find that the mini-mugs are described in heading 6913, HTSUS, and are classified in subheading 6913.90.50, HTSUS, as: “Statuettes and other ornamental ceramic articles: . . . Other: . . . Other: . . . Other.” Our finding is consistent with NY D89217, described above.

HOLDING:

The mini-mugs are classified in subheading 6913.90.50, HTSUS, as: “Statuettes and other ornamental ceramic articles: . . . Other: . . . Other: . . . Other.”

The protest was not timely with respect to the entry liquidated on May 25, 2001.

You are instructed to DENY the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, 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 in accordance with the decision must be accomplished prior to mailing of 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.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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