CLA-2 CO:R:C:M 088838 NLP
Mr. Louis Shoichet
Siegel, Mandell & Davidson
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036
RE: Ceramic beer steins; Heading 6912; Heading 6913; other
ornamental articles
Dear Mr. Shoichet:
This ruling is in response to your letter dated January 28,
1991, requesting the classification of ceramic beer steins under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample was submitted for our examination. As you
requested, the sample will be returned to you along with this
ruling.
FACTS:
The article at issue is a ceramic beer stein called the
"Sporting Dog Stein". Your submission does not state the exact
composition of the beer stein, only that it is made of ceramic.
For the purposes of this ruling, we will presume that the stein
is made up of a ceramic other than porcelain or china. The stein
measures approximately 9-1/2 inches in height and 4-1/2 inches in
diameter at its widest point. The outer surface of the stein is
decorated in high relief with sculptured raised representations
of several breeds of sporting dogs, who are portrayed in a
variety of hunting positions. Below each raised representation
appears the name of the pertinent breed of sporting dog. The lid
is approximately 3-1/2 inches in diameter and is composed of
pewter with a ceramic insert. The ceramic insert is 3 inches in
diameter and in its center is the sculptured figure of a labrador
retriever, 1-1/4 inches in length and 1-1/2 inches in height.
The rest of the ceramic insert depicts a hunter and his two dogs
hunting a bird. This stein is capable of holding approximately
30-35 fluid ounces.
The instant stein is marketed and sold as a collectible item
through the Avon gift catalog. The retail price of the stein is
$55.00. The marketing literature characterizes the stein as a
collectible item to be bought and sold by stein collectors. The
Sporting Dog Stein will be numbered, dated and bear the Avon
Collectibles logo. In addition, you state that the manufacturer
of the instant stein, Ceramarte, is widely known throughout the
industry as a producer of collectible steins.
ISSUE:
Is the Sporting Dog Stein classifiable in subheading
6912.00.41, HTSUSA, which provides for ceramic tableware, other
household articles, other than of porcelain or china, tableware
and kitchenware, steins with permanently attached pewter lids, or
in subheading 6913.90.50, HTSUSA, which provides for other
ornamental ceramic articles, other, other.
LAW AND ANALYSIS:
The classification of goods under the HTSUSA is governed by
the General Rules of Interpretation (GRIs), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
Heading 6912, HTSUSA, provides for ceramic tableware,
kitchenware, other household articles and toilet articles, other
than of porcelain or china. The Explanatory Notes (ENs) for the
HTS, although not dispositive, are to be looked to for the proper
interpretation of the HTS. EN(A) to Heading 6912, page 922,
provides that tableware includes "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."
In Headquarters Ruling Letter (HRL) 084122, January 9, 1990,
Customs dealt with the classification of sculptured porcelain
molds. This case involved the interpretation of Heading 6911,
which provides for tableware, kitchenware, other household
articles and toilet articles, of porcelain and china, and Heading
6913. HRL 084122 stated that Heading 6911, HTSUSA, is a use
provision. U.S. Rule of Interpretation 1(a) states the
following:
a tariff classification controlled by use (other than actual
use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of
importation, of goods of that class or kind to which the
imported goods belong, and the controlling use is the
principal use.
According to HRL 084122, in order for an article to be classified
within Heading 6911, HTSUSA, it must be principally used as
tableware or kitchenware.
The rule of in pari materia is pertinent in the instant
case. This rule provides that where two provisions are
essentially the same, they are to be construed in essentially the
same manner. Heading 6911, HTSUSA, and Heading 6912, HTSUSA, are
essentially the same provisions, the only difference being that
Heading 6911, HTSUSA, covers tableware, kitchenware, etc..., made
of porcelain or china, while Heading 6912, HTSUSA covers the same
article made of other than porcelain or china. As a result,
since Heading 6911, HTSUSA, is considered a use provision,
Heading 6912, HTSUSA, would also be considered a use provision.
Therefore, for the instant stein to be classified in Heading
6912, HTSUSA, its principal use would have to be as tableware and
kitchenware. The stein in question is principally used for
ornamenting or decorating and not as tableware. Therefore, it is
excluded from classification as tableware within Heading 6912,
HTSUSA.
Heading 6913, HTSUSA, provides for statuettes and other
ornamental ceramic articles. The EN to Heading 6913, HTSUSA,
state that this heading covers a wide range of ceramic articles
of the type designed essentially for the interior decoration of
homes, offices..., etc. Part B of the EN to Heading 6913,
HTSUSA, page 923, states the following:
(B) Tableware and other domestic articles only if the
usefulness of the articles is clearly subordinate to
their ornamental character, for example, trays molded
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.
Applying Part B of the EN to Heading 6913, we find that an
examination of the beer stein and the evidence presented support
a conclusion that the subject stein does not appear to be
designed essentially to serve a useful purpose and its elaborate
decoration is not secondary to its usefulness. The stein
will be marketed and sold as a collectible in the Avon gift
catalog. In addition, frequent use and cleaning would erode
the high relief decorations on the stein.
Furthermore, a stein is defined as "a usually one-pint mug,
especially for beer." Webster's II New Riverside University
Dictionary (1984). The instant stein's larger capacity does not
suggest that it is intended to hold larger quantities of beer,
but that it is intended to be used as a decorative article.
Moreover, the large size of the stein makes it unwieldy and in
order to drink from the stein it is necessary to hold it filled
with beer nearly perpendicular to one's mouth.
The classification of decorated ceramic beer steins has been
dealt with in G. Heileman Brewing Co. v. United States, Slip Op.
90-87 (Sept. 6, 1990). The issue in that case was whether the
imported ceramic steins were classifiable as mugs or other steins
in item 533.30, Tariff Schedules of the United States (TSUS), or
as art and ornamental articles in item 534.87, TSUS. The court
pointed out that, while it was possible to drink out of the mugs,
since they were clumsy to hold and repeated washings would
obliterate the colors and logo on the steins, their utilitarian
use was limited. Moreover, the steins were highly decorated and
were larger than the typical mugs or steins used to serve beer.
In addition, the court found that the steins were purchased
primarily by breweriana collectors for use as collectibles.
Therefore, it was concluded that because of their size,
composition and decoration these steins were ornamental articles,
rather than articles chiefly intended for regular use as
household articles.
Congress has indicated that earlier tariff rulings must not
be disregarded in applying the HTSUSA. The conference report to
the 1988 Omnibus Trade Bill, states that "on a case-by-case basis
prior decisions should be considered instructive in interpreting
the HTS[USA], particularly where the nomenclature previously
interpreted in those decisions remains unchanged and no
dissimilar interpretation is required by the text of the
HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550
(1988). Since the subject nomenclature in the TSUS and HTSUSA
are essentially the same and the articles at issue in the
Heileman case and the instant case are essentially the same, we
find that Heileman lends further support to our conclusion that
the instant stein is an ornamental article classified in Heading
6913, HTSUSA.
HOLDING:
The Sporting Dog Stein is classified in subheading
6913.90.50, HTSUSA, which provides for other ornamental ceramic
articles, other, other.
Sincerely,
John Durant, Director
Commercial Rulings Division