CLA-2 CO:R:C:M 951608 NLP

District Director
United States Customs Service
555 Battery Street
San Francisco, CA 94126

RE: Protest No. 2809-91-101416; porcelain tableware and kitchenware; ornamental porcelain ware; Explanatory Notes to headings 6911, 6912 and 6913

Dear Sir:

The following is our response to the Protest and Request for Further Review No. 2809-91-101416, dated August 16, 1991, concerning the classification of assorted decorative porcelain ware under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

A catalogue containing pictures of the subject merchandise was submitted for our review. The products at issue are made of porcelain and are decorated in various blue and white glazed patterns. The porcelain ware is identified as follows:

a) a 10 inch octagon-shaped candy bowl- style no. 6B-8 b) a 3-1/2 inch round dragon handle teacup- style no. 13A- 26 c) a 7-1/2 inch beer stein- style no. 85016 d) a 15 inch round "grapes" bowl- style no. 88078 e) an 11 inch round vase- style no. 12H-1

Upon importation, items a and d were classified in subheading 6911.10.80, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of porcelain or china: tableware and kitchenware: other: other: other: other. The rate of duty is 26% ad valorem per dozen pieces. Item b was classified in subheading 6911.10.49, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of porcelain or china: tableware and kitchenware: other: other: other: cups valued over $8 per dozen.... The rate of duty is 8% ad valorem per dozen pieces.

Item c was classified in subheading 6911.10.45, HTSUS, which provides for tableware, kitchenware, and other household articles and toilet articles, of porcelain or china: tableware and kitchenware: other: other: other: mugs and other steins. The rate of duty is 17.5% ad valorem per dozen pieces. Item e was classified in subheading 6913.10.50, HTSUS, which provides for statuettes and other ornamental ceramic articles: of porcelain or china: other: other. The rate of duty is 9% ad valorem per dozen pieces.

The protestant contends that all the above items are classified in subheading 6911.90.00, HTSUS, which provides for household articles and toilet articles, of porcelain or china, other than tableware or kitchenware. The rate of duty is 9% ad valorem.

ISSUE:

Are the porcelain articles decorative in nature and classifiable as other ornamental ceramic articles in subheading 6913.10.50, HTSUS?

Are any of the porcelain articles kitchenware or tableware classifiable in subheadings 6911.10.80, HTSUS, 6911.10.49, HTSUS, or 6911.10.45, HTSUS?

Are any of the porcelain articles classifiable as other household articles classifiable in subheading 6911.90.00, HTSUS?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUS. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 6913, HTSUS, provides for statuettes and other ornamental ceramic articles. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 6913 provide the following on page 923:

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.:

* * *

(3) Purely ornamental table-bowls, vases, pots, jardinieres. (B) Tableware and other domestic articles only if the usefulness of the articles is clearly subordinate to their ornamental character, for example, trays moulded in relief so that their usefulness is virtually nullified, ornaments incorporating a purely incidental tray or container usable as a trinket dish or ashtray, miniatures having no genuine utility value, etc. In general, however, tableware and domestic utensils are designed essentially to serve useful purposes, and any decoration is usually secondary so as not to impair the usefulness. If, therefore, such decorated articles serve a useful purpose no less efficiently than their plainer counterparts, they are classified in heading 69.11 or 69.12 rather than in this heading.

The protestant contends that these porcelain articles are sold primarily as decorative pieces, not as kitchenware and/or tableware. Most buyers use the articles as display items and some actually use them for food related purposes. Therefore, the articles are primarily decorative pieces and should be classified in subheading 6911.90.00, HTSUS.

The beer stein, the 15 inch round "grapes" bowl and the round vase are considered ornamental articles classifiable in heading 6913, HTSUS. The stein does not appear to be designed essentially to serve a useful purpose and the decoration is not secondary to its usefulness. The size of the stein makes it unwieldy from which to drink. The round bowl, because of its size and shallow depth, is primarily used as a decorative article and is limited in its utilitarian use. Therefore, the bowl's usefulness is subordinate to its ornamental character. Furthermore, the round vase meets the description of articles classified in heading 6913, HTSUS. The usefulness of the vase is to support or contain other decorative articles or to add to their decorative effect. It is also listed as an exemplar in EN (A)(3) to heading 6913. Therefore, these articles are classified in subheading 6913.10.50, HTSUS as other ornamental articles of porcelain.

In determining the classifications of the candy bowl and the dragon cup, we look to the ENs to heading 6911, which refer the reader to the ENs for heading 6912. The ENs for heading 6912 provide the following on page 922:

Tableware, kitchenware, other household articles and toilet articles are classified in heading 69.11 if of porcelain or china,....

The headings therefore include:

(A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, spoons and serviette rings.

The candy bowl and dragon teacup are classified in heading 6911, HTSUS, as the usefulness of these articles as tableware is not subordinate to their ornamental characters. While the candy bowl is decorated in a blue and white glaze, the inner portion of the dish is smooth and undecorated indicating its suitability for use as a bowl to hold food preparations. Therefore, the candy bowl is tableware and is classified in subheading 6911.10.41, HTSUS, which provides for tableware, kitchenware, other household articles and toilet articles, of porcelain or china: tableware and kitchenware; other: other; other;...candy boxes, decanters, punch bowls, pretzel dishes, tidbit dishes, tiered servers, bonbon dishes..... The teacup is decorated with a dragon figure on its handle. However, this figure does not impair one's ability to use this cup for drinking purposes. In addition, this teacup is the same size and shape as articles of the same class or kind classifiable under heading 6911, HTSUS. The teacup is considered tableware and is classified in subheading 6911.10.49, HTSUS.

In addition to covering porcelain tableware, kitchenware and toilet articles, heading 6911, HTSUS, covers other porcelain household articles that are utilitarian in nature. According to EN(D) to heading 6912, on page 922, other household articles include such items as ash trays, hot water bottles and matchbox holders. These articles would be classified in subheading 6911.90.00, HTSUS. In the instant case, none of the porcelain articles under consideration are akin to the exemplars listed in EN(D) to heading 6912. The articles are either ornamental in nature or are items that can be used as tableware. They are not utilitarian household articles and, therefore, none are classified in subheading 6911.90.00, HTSUS.

HOLDING:

The candy bowl is classified in subheading 6911.10.41, HTSUS. The rate of duty is 9% ad valorem per dozen pieces.

The teacup is classified in subheading 6911.10.49, HTSUS. The rate of duty is 8% ad valorem per dozen pieces.

The beer stein, round bowl and round vase are classified in subheading 6913.10.50, HTSUS. The rate of duty is 9% ad valorem per dozen pieces.

Since reclassification of the merchandise as indicated above would result in the same rate of duty for the candy bowl, beer stein, round bowl and round vase, and a lower rate of duty for the teacup than claimed by the protestant, you are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director