CLA-2 CO:R:C:M 950390 NLP
Mr. Louis Shoichet
Siegel, Mandell & Davidson
One Astor Plaza
1515 Broadway 43rd Floor
New York, NY 10036
RE: Revocation of HRL 087732; Ceramic beer steins; Heading
6912; Heading 6913; other ornamental articles
Dear Mr. Shoichet:
On November 20, 1990, Headquarters Ruling Letter (HRL)
087732 was issued to you classifying a ceramic beer stein in
subheading 6912.00.41, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for ceramic tableware,
other household articles, other than of porcelain or china,
tableware and kitchenware, steins with permanently attached
pewter lids. We have reconsidered this ruling and have concluded
that it does not reflect the correct classification of the
subject merchandise.
FACTS:
HRL 087732 deals with the classification of a ceramic beer
stein that is decorated with a military motif. The stein is
stated to be other than of porcelain or china. It measures
approximately 9 inches in height and 4 inches in diameter at the
widest point. The outer surface of the stein is decorated in a
military motif in high relief with a pewter lid. The words "Air
Force", "Coast Guard", "Navy", "Army", and "Marines" are embossed
along the base of the stein. The stein weighs 2 pounds when
empty and 4 pounds when it was full. In addition, the stein is
constructed in such a manner that indentations are created on its
interior surface opposite the raised portion on the outer surface
of the stein. In that ruling the stein was classified in
subheading 6912.00.41, HTSUSA.
ISSUE:
Is the stein classified 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 (GRI's), 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 Harmonized Commodity Description
and Coding System 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 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 articles made of other than porcelain or china.
As a result, because 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 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 was the
subject of 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 military motif stein is classified in subheading
6913.90.50, HTSUSA, which provides for other ornamental ceramic
articles, other, other.
HRL 087732 is hereby revoked pursuant to 19 CFR
177.9(d)(1).
Sincerely,
John Durant, Director
Commercial Rulings Division