CLA-2 CO:R:C:M 951363 EJD

TARIFF NO: 6911.10.80, 6912.00.48

Ms. Rita Yeh
Gold Leaf Enterprises, Inc.
5256 N.W. 163rd Street
Miami, FL 33014

RE: Reconsideration of NY 867922; Containers for Tea; Subheading 6913.10.10; Subheading 6913.90.10; LD 80-0210; C.I.E. 160/56; HQ 554455; HQ 087577

Dear Ms. Yeh:

This is in response to your request, dated January 6, 1992, for reconsideration of New York Ruling Letter (NY) 867922, dated November 13, 1991, concerning, in particular, the tariff classification of various porcelain and ceramic tea containers from Sri Lanka.

FACTS:

The tea containers come in various shapes and sizes and are made of porcelain or terra cotta ceramic. Photo copies and one representative sample were submitted. The sample is a rectangular shaped decorative ceramic container, with a lid, measuring approximately 4 inches in height and 2 1/2 inches in width. It does not appear to be made of porcelain. Tea, in 1.75 gram plastic packs, is inserted in the containers prior to importation.

You maintain that the porcelain or ceramic containers should be classified under the provision for statuettes and other ceramic articles in subheading 6913.10.10, Harmonized Tariff Schedule of the United States (HTSUS), as they are the works of professional sculptors and "...they are mainly statuettes and ornaments in the shape of lion, elephants and goddess-like figurines. They are all directly from molds made from original models produced by professional sculptors."

Based upon the information supplied, the articles in question are of ceramic or porcelain ware. Information as to whether they are valued over $2.50 each and produced by professional sculptors or directly from molds made from original models produced by professional sculptors had not been submitted in the original ruling request nor is it supplied now.

In NY 867922, the porcelain tea containers were held to be classifiable under subheading 6911.10.80, HTSUS, subject to a 26 percent ad valorem rate of duty, primarily because no information was submitted to demonstrate that the creators of the merchandise qualified as professional sculptors as that term has been defined and that they were valued over $2.50 each. The terra cotta ceramic tea containers were held to be classifiable under subheading 6912.00.48, HTSUS, subject to a 11.5 percent ad valorem rate of duty, for the same reasons.

ISSUE: Are porcelain and ceramic tea containers properly classified under subheadings 6911.10.80 and 6912.00.48, HTSUS, respectively, or under subheading 6913.10.10, and 6913.90.10, HTSUS, respectively.

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 that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

You have requested reconsideration of NY 867922 because, in your opinion, the porcelain and ceramic tea containers are properly classified in subheading 6913.10.10, HTSUS, as "ornamental articles". In support of your claim you state the following:

After leaving an Oriental restaurant, people take their wine figurine home for decorative purpose. These ornamental articles have the same purpose. Once the tea is over, it will be used as a decorative item since they cannot be refilled.

Heading 6913, HTSUS, provides for "statuettes and other ornamental ceramic articles...of porcelain or china...statues, statutes and handmade flowers, valued over $2.50 each and produced by professional sculptors or directly from molds made from original models produced by professional sculptors."

For an article to be classified in heading 6913, HTSUS, it must meet all the requirements.

In Headquarters Ruling (HQ) 061949, dated May 19, 1980, published as Legal Determination (LD) 80-0210, dated December 23, 1980, Customs defined the term "professional" as it is used in item 534.11, Tariff Schedules of the United States (TSUS) (the precursor provision to subheadings 6913.10.10, 6913.90.10, HTSUS), which provided for "statues, statuettes, and hand-made flowers, all the foregoing not specially provided for, of ceramic ware, valued over $2.50 each and produced by professional sculptors." (Emphasis added.)

LD 80-0210 cites to C.I.E. 160/56, dated February 6, 1956, which stated that "for a person to be considered to be a professional he must either (1) "...be a graduate of a course in sculpture at a recognized school of art (free fine art not industrial art), or ..." (2) he must "... be recognized in art circles as a professional sculptor by the acceptance of his works in public exhibitions limited to the free fine arts."

Following the well established criterion enunciated in C.I.E. 160/56, and observed in a substantial number of subsequent decisions (e.g., HQ 554455, dated December 21, 1987) to be considered a "professional sculptor," a person must be "a graduate of a course in sculpture at a recognized school of free fine art or be recognized in art circles as a professional sculptor by the merits of his or her works in public exhibitions limited to free fine arts."

As stated in LD 80-0210 "[t]his interpretation of the term "professional" has been given effect in our rulings and we are of the opinion that it should continue to be applied..."

While these earlier rulings are not binding under HTSUS, Congress has indicated that earlier tariff rulings must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988 states that

on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[US].

H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). Since the nomenclature in the TSUS and HTSUS are essentially the same and the articles at issue are essentially the same, we find that LD 80-0210 and HQ 554455 are instructive in understanding what articles are classified in heading 6913, HTSUS.

The definition of "professional sculptor" has been carried over into the HTSUS. See HQ 087577, dated November 21, 1990.

You have not identified the artists nor have you supplied information to determine if the artists qualified as "professional sculptors." Therefore, classification in subheadings 6913.10.10 and 6913.90.10, HTSUS, is precluded. In addition, you have not provided information to confirm that these porcelain and ceramic tea containers are valued over $2.50 each. Finally, five of the fourteen ceramic containers in question do not qualify for classification in heading 6913 as they are not statues, statuettes or handmade flowers. Based on the representative sample and the photos submitted, the containers appear to be works of craftsmen rather than professional sculptors.

The applicable subheading for porcelain tea containers is 6911.10.80, HTSUS, which provides for other tableware or kitchenware of porcelain or china. The rate of duty is 26 percent ad valorem.

The applicable subheading for terra cotta ceramic tea containers is 6912.00.48, HTSUS, which provides for other tableware and kitchenware not of porcelain or china. The rate of duty is 11.5 percent ad valorem.

HOLDING:

The porcelain tea containers are properly classified under subheading 6911.10.80, HTSUS, which provides for "tableware, kitchenware, other household articles and toilet articles, of porcelain or china...tableware and kitchenware...other."

The terra cotta tea containers and ceramic tea containers are properly classified under subheading 6912.00.48, HTSUS, which provides for "ceramic tableware, kitchenware, other household articles and toilet articles, other than porcelain or china...other."

NY 867922 is affirmed.


Sincerely,

John Durant, Director
Commercial Rulings Division