CLA-2 CO:R:C:M 950177 NLP
District Director
United States Customs Service
One Virginia Avenue
Wilmington, NC 28401
RE: Protest No. 1501-90-000073; porcelain and other ceramic
steins; Headings 6912; 6913; Explanatory Notes to
headings 6912 and 6913; G. Heileman Brewing Co.,v. United
States; HRL's 084122; 950430; 950390; 088838; U.S. Rule of
Interpretation 1(a); GRI 2(a); Explanatory Notes to GRI
2(a)
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 1501-90-000073, dated December 13,
1990. At issue is the classification of porcelain and other
ceramic beer steins under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
One group of non-porcelain ceramic steins are imported from
Brazil. Each is detailed and designed with applied decorations,
that are, in some cases, reproductions of various artists works.
Many of the steins are also decorated in high relief. When the
stein is issued as part of a limited edition collection, it is
printed with an individual serial number. Some of the steins
have pewter lids that have embossed medallions and specialized
designs on the thumb pieces. The weight of the steins, when
empty, ranges from one pound 10 ounces to two pounds six ounces.
The prices of the steins range from $15.95 to $64.95. Submitted
advertising material emphasizes the decorative aspects of the
steins and that these steins are intended for use as
collectibles.
The second group are porcelain and other ceramic steins
imported from West Germany. According to the importer, the
steins, in their condition as imported, are unfinished. After
importation, each stein will be decorated with a specific design
in the form of a decal, which is used to allow a faithful
reproduction of an original artist's drawing, painting,
sculpture, etc. Some original works are specially commissioned
by the importer. Other works are authorized by the artist to be
reproduced as decals. In addition, decorated pewter lids will be
attached to some of the steins. When the stein is issued as part
of a limited edition series, it will be printed with an
individual series number.
Moreover, before importation, each style of stein which has
a raised surface is subject to hand coloring prior to
importation. The stein is dipped into a bath of contrasting
color. After drying it is wiped by hand so that the coloring
material remains only in the low areas of the relief.
A sample of each body style of steins, in both its
unfinished and finished condition, has been furnished for
examination. The following is a description of a representative
selection of the unfinished and finished steins.
One unfinished stein is made of porcelain and is white in
color. It is 5-3/4 inches high and weighs 1 pound and 10 ounces.
After importation, this stein will be decorated with a decal
depicting Bavarians dancing and playing music. This stein will
have a pewter lid with a ceramic medallion on top. The stein
will be called the "Stroh's Bavaria Collection I steins". This
stein will also be decorated with a decal depicting holiday
scenes and will also have a pewter lid. This stein will be
called the "Holiday Collection Limited Edition stein."
A second unfinished stein is made of porcelain and is white
in color. It is 6-3/8 inches high and weighs 2 pounds and 2
ounces. After importation, this stein will be decorated with
decals of major league basketball and football teams. The stein
will have a pewter lid with a ceramic inlay of the team name.
The thumb piece will either be in the shape of a football or
basketball. These steins will be called the "NFL and/or NBA
stein."
A third unfinished stein is also made of porcelain and is
white in color. It is 7-3/4 inches high and weighs 2 pounds and
3 ounces. After importation, the stein will be decorated with
winter scenes. The stein will have an embossed pewter lid. The
advertising literature states that "Original art from Colorado
artist, Tim Stortz, graces each stein." This stein will be
called the "Coors Brewing Co. Winterfest stein." This stein will
also be decorated with a scene depicting a Milwaukee street scene
and will have an embossed pewter lid. This is a limited edition
stein and it will be called the "Miller Holiday Collection
stein."
Another unfinished stein is made of ceramic and is mottled
light blue in color with dark blue high relief trim. It is 8
inches high and weighs 1 pound and 12 ounces. After importation,
the outer surface of the stein will be decorated with a
reproduction of the federal duck stamp. The top of the pewter
lid will be embossed with an antiqued medallion of a duck with
the words "The Federal Duck Stamp, 1989-1990" written around the
top. The stein will have a thumb piece in the shape of a duck
head. This stein will be called the "Federal Duck stamp stein."
A fifth stein is made of ceramic and is beige in color with
brown high relief trim. It is 7-1/4 inches high and weighs 2
pounds and 5 ounces. After importation, the stein will be
decorated with a detailed decal depicting a moose in a natural
surrounding. A pewter lid with a bronze medallion with the words
"Moosehead beer" will be attached. This stein will be called the
"Moosehead Medallion Collector Edition Northern Solitude Limited
Edition stein."
The last stein is made of ceramic and is tan in color with a
dark red trim. It is 9 inches high and weighs 2 pounds and 6
ounces. It has a specially sized oval and circle in relief of a
color lighter than the body of the stein. After importation, a
decal depicting turkeys in the wilderness is fitted in the oval.
A decal with the words "National Wild Turkey Federation" is
placed in the small circle under the decal. A hand painted
figurine of a turkey is mounted on an attached solid pewter lid.
The stein will be called the "Apprentice" and is a limited
edition stein.
Upon importation, the ceramic steins from Brazil and West
Germany were classified in subheading 6912.00.44, HTSUS, which
provides for ceramic tableware, kitchenware, other household
articles and toilet articles, other than of porcelain or china,
tableware and kitchenware, mugs and other steins.
The protestant contends that the finished ceramic steins are
classified in subheading 6913.90.50, HTSUS, which provides for
statuettes and other ornamental ceramic articles, other, other.
Further, the unfinished steins are also classified in heading
6913, HTSUS. The porcelain unfinished steins would be classified
in subheading 6913.10.50, HTSUS, which provides for statuettes
and other ornamental ceramic articles, of porcelain or china,
other, other. The ceramic unfinished steins would be classified
in subheading 6913.90.50, HTSUS.
ISSUE:
Are the non-porcelain finished and unfinished steins
classifiable in subheading 6912.00.44, HTSUS, or in subheading
6913.90.50, HTSUS.
Are the porcelain unfinished steins classifiable in
subheading 6911.10.45, HTSUS, or in subheading 6913.10.50, HTSUS.
LAW AND ANALYSIS:
The classification of goods under the HTSUS 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.
The protestant contends that both the finished and
unfinished steins are classified in heading 6913, HTSUS, as they
are principally used for ornamenting or decorating and not in
headings 6911 or 6912, HTSUS, as kitchenware or tableware. In
support of this contention, protestant argues that headings 6911
and 6912, HTSUS, are use provisions and that the steins are
principally used as ornamental articles. Counsel looks to the
factors set out in G. Heileman Brewing Co. v. United States, Slip
Op 90-87 (Sept. 6, 1990) (hereinafter referred to as Heileman) to
determine whether the steins are of the "class or kind" of goods
principally used for decoration or ornamentation.
Protestant is correct in his position that heading 6912,
HTSUS, is a use provision. 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, HTSUS, which provides for
tableware, kitchenware, other household articles and toilet
articles, of porcelain and china, and heading 6913. HRL 084122
stated that heading 6911, HTSUS, 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.
Therefore, for articles to be classified within heading 6911,
HTSUS, they 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, HTSUS, and heading 6912, HTSUS, are
essentially the same provisions, the only difference being that
heading 6911, HTSUS, covers tableware, kitchenware, etc..., made
of porcelain or china, while heading 6912, HTSUS, covers the same
article made of other than porcelain or china. As a result,
because heading 6911, HTSUS, is considered a use provision,
heading 6912, HTSUS, would also be considered a use provision.
Therefore, for the instant steins to be classified in heading
6912, HTSUS, their principal use would have to be as tableware or
kitchenware.
Although tableware and kitchenware are not defined in the
HTSUS, exemplars of such articles are listed in the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
to heading 6912, HTSUS. The ENs to heading 6912 are incorporated
by reference into the ENs to heading 6911. 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."
Though counsel focuses on the factors set out in Heileman to
determine whether the steins are the class or kind of articles
used for ornamental or decorative purposes, we cannot ignore the
ENs to heading 6913 in determining the classification of these
steins. We find that these ENs support the classification of
some of the finished steins as tableware in headings 6911 and
6912, HTSUS, and not as ornamental articles in heading 6913,
HTSUS. The ENs to heading 6913 state, on page 923, 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, 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 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.
Applying part B of the ENs to heading 6913, we find that an
examination of the steins and the evidence presented indicate
that the steins that are between five and six inches high and
are decorated with decals serve a useful purpose no less
efficiently that their plainer counterparts and that the
usefulness of these steins is not clearly subordinate to their
ornamental character.
These steins are smaller than the highly ornamented steins
classified in previous rulings. See, Headquarters Ruling Letter
(HRL) 950430, dated January 23, 1992, which classified, inter
alia, a fishing stein and a racing car stein that were 8-1/2
inches high; HRL 950390, dated October 7, 1991, which classified
a military stein that was 9 inches high; and HRL 088838, dated
October 7, 1991, which classified a sporting dog stein that was
9-1/2 inches high.
Examination of the subject steins reveals that they are not
unwieldy to drink from and their weight, once full, would not be
prohibitive. The smaller size of these steins, unlike the larger
steins,( whose capacity suggests that they are not intended to
hold larger quantities of beer) suggests that they are intended
to be used as beer steins. Their smaller size makes them less
difficult from which to drink.
Moreover, the type of decals on the smaller steins is not as
ornate as the high relief decorations on the steins classified in
the above rulings. This type of decoration is less prone to
fading and obliteration after repeated washings.
We note that in HRL 950430, cited above, Customs held that
mini steins, which were 4-1/2 inches high, were classified in
heading 6913, HTSUS, as ornamental articles. However, these
steins are distinguishable from the subject steins as they were
ornately decorated with high relief and raised representations
and could only hold 6 fluid ounces. The smaller handles and
openings made the mini steins hard to hold and difficult from
which to drink. Therefore, the mini steins' much smaller
capacities and raised decorations made them not designed
essentially to serve a useful purpose and they were classified as
ornamental articles.
We are of the opinion that the finished steins that are 5 to
6 inches high and are decorated only with decals are of that
class or kind of article which are used as tableware no less
efficiently than their counterparts, whether plain or decorated.
They are considered tableware and are classified in either
subheading 6911.10.45, HTSUS, or in subheading 6912.00.44, HTSUS,
depending on their composition. As these articles are not
considered ornamental, their unfinished versions cannot be
considered ornamental articles either. Thus, the unfinished
versions of these steins are also classified in subheading
6911.10.45, HTSUS, or in subheading 6912.00.44, HTSUS, depending
on their composition.
In applying Part B of the EN to heading 6913, we find that
an examination of the larger beer steins and the evidence
presented support a conclusion that these steins do not appear to
be designed essentially to serve a useful purpose and their
elaborate decoration is not secondary to their usefulness. The
steins that are 6-3/8 inches high and larger are unwieldy. To
drink from the steins with attached pewter lids, it is necessary
to hold the stein filled with beer nearly perpendicular to one's
mouth while keeping the attached lids open and away from the
face. Moreover, the frequent use and cleaning would erode the
details of the steins decorated with high relief and various
colors. Thus, the combination of the design, the height and the
marketing of these steins makes them ornamental articles, not
articles of tableware.
As noted, the classification of decorated ceramic beer
steins has been dealt with in G. Heileman Brewing Co. v. United
States, supra. 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 steins,
because 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 HTSUS. 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). Inasmuch as the subject nomenclature in the TSUS and
HTSUS are essentially the same, we find that given the size,
composition, decoration, and the marketing of these steins,
Heileman lends further support to the classification of the
larger steins as ornamental articles in heading 6913, HTSUS.
Concerning the classification of the unfinished steins, it
is protestant's position that these articles, upon importation,
have the essential character of the finished steins and should be
classified with the finished steins in heading 6913, HTSUS. We
have held that the larger decorated steins are classified as
ornamental articles in heading 6913, HTSUS. Therefore, if the
undecorated steins have the essential character of the finished
steins, they will be also be classified in heading 6913, HTSUS.
GRI 2(a) states the following, in pertinent part:
Any reference in a heading to an article shall be taken
to include a reference to that article incomplete or
unfinished, provided that, as entered, the incomplete
or unfinished article has the essential character of
the complete or finished article.
The ENs to GRI 2(a), page 2, state the following:
(II) The provisions of this Rule also apply to blanks
unless these are specified in a particular
heading. The term "blank" means an article, not
ready for direct use, having the approximate shape
or outline of the finished article or part, and
which can only be used, other than in exceptional
cases, for completion into the finished article
or part.
The unfinished larger steins have the essential character of
the complete or finished collectors steins by reason of their
shape, weight and finish. The steins are in the shape and weight
that they will be when they are sold in their finished form. The
steins are manufactured in a specific style and with a specific
finish so as to accept a specific kind of decoration. For
example, the last ceramic stein discussed on page 3 in this
ruling has a specific sized oval and circle in relief of a color
lighter than the body of the stein. This has been done to
highlight and frame the decorative picture and name which is
added in the U.S. and which is specially designed and
manufactured for the stein. The other two ceramic steins have
been colored so that the decal applied in the U.S. will be
framed. In addition, as imported the steins look unfinished.
As we have held, the finished steins are considered
ornamental articles and are classified in heading 6913, HTSUS.
Therefore, the unfinished steins are also classified in heading
6913, HTSUS. The porcelain unfinished steins are classified in
subheading 6913.10.50, HTSUS, and the other ceramic unfinished
steins are classified in subheading 6913.90.50, HTSUS.
HOLDING:
The protest should be denied in part and granted in part. 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
Commercial Rulings Division