CLA-2 CO:R:C:M 950430 NLP
Regional Commissioner of Customs
Protest and Control Section
6 World Trade Center
Room 762
New York, NY 10048-0945
RE: Protest No.1001-91-000861; ceramic steins; Heading 6912;
Heading 6913
Dear Regional Commissioner:
The following is our decision regarding the Protest and
Request for Further Review No. 1001-91-000861, dated January 30,
1991. At issue is the classification of ceramic beer steins
imported from Brazil.
FACTS:
The merchandise at issue is three different styles of
ceramic beer steins. The first stein is the fishing stein which
measures approximately 8-1/2 inches in height and 4 inches in
diameter at its widest point. The outer surface is decorated in
high relief in a nautical theme. Specifically, the stein has
raised representations of various game fish and marine life. The
handle of this stein is sculptured and decorated to depict a
fishing pole. In addition, the stein has an attached pewter lid
which is adorned with a three dimensional figure of a game fish.
The stein is capable of holding 30-35 fluid ounces. The stein is
numbered, dated and has the Avon Collectibles logo.
The second stein, the racing car stein, measures
approximately 8-1/2 inches and 3-1/2 inches in diameter at its
widest point. The outer surface of the stein is decorated in a
racing theme with raised representations of various models of
racing cars. The words "N.Y. to Paris", "Indianapolis 500" and
"Grand Prix" are embossed along the base of the stein. The top
of the pewter lid is adorned with a miniature model of an old-
fashioned racing car. The stein is capable of holding 30-35
fluid ounces. This stein is numbered, dated and has the Avon
Collectibles logo.
The third stein is the ceramic eagle mini stein with an
attached pewter lid. This stein measures approximately 4-1/2
inches in height and 1-3/4 inches in diameter at the lid opening.
The outer surface of the stein is decorated with raised
representations of an American eagle who is depicted both perched
on the limb of a tree and in a close-up stationery position. The
stein also has raised representations of trees and mountains in
the background. The stein is capable of holding approximately 6
fluid ounces and it is numbered, dated and has the Avon
Collectibles logo.
The subject steins are marketed and sold through the Avon
Gift Catalog with factual inserts describing the history of game
fishing, car racing and the wildlife history of the American
eagle. The importer has submitted advertising material which
emphasizes the decorative aspects of the steins and that these
steins are intended for use as collectibles.
Your office liquidated the fishing stein and the eagle mini
stein in subheading 6912.00.41, HTSUS, which provides for ceramic
tableware, kitchenware, other household articles and toilet
articles, other than of porcelain or china, tableware and
kitchenware, steins with permanently attached pewter lids. Your
office liquidated the racing car stein 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.
Counsel for Avon contend that the instant steins are
classifiable in subheading 6913.90.50, HTSUSA, which provides for
statuettes and other ornamental ceramic articles, other, other.
It is counsel's argument that Heading 6913 is a use provision and
that the instant steins are not used as tableware and
kitchenware, but are principally used as collectible ornamental
articles. In addition, counsel asserts that G. Heileman Brewing
Co. v. United States, Slip Op. 90-87, Sept. 6, 1990, (Heileman)
which held that decorated ceramic steins were not chiefly used as
tableware and household goods, but were chiefly used as
collector's pieces for ornamental purposes, is precedent
notwithstanding the fact that the case was decided under the
Tariff Schedules of the United States (TSUS).
ISSUE:
Are the above described steins classifiable in subheading
6912.00.41, HTSUS, which provides for ceramic tableware,
kitchenware, other household articles and toilet articles, other
than of porcelain or china, tableware and kitchenware, steins
with permanently attached pewter lids or 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, 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 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 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 steins to be classified in Heading
6912, HTSUSA, their principal use would have to be as tableware
and kitchenware. The steins in question are principally used for
ornamenting or decorating and not as tableware. Therefore, they
are 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, 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 steins and the evidence presented support
a conclusion that the subject 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 will
be marketed and sold as collectibles in the Avon gift catalog
with factual inserts included in the packaging that describes the
history of game fishing, car racing and the wildlife history of
the American eagle. In addition, frequent use and cleaning would
erode the high relief decorations on the steins.
Furthermore, a stein is defined as "a usually one-pint mug,
especially for beer." Webster's II New Riverside University
Dictionary (1984). The fishing and racing steins larger
capacities do not suggest that they are intended to hold larger
quantities of beer, but that they are intended to be used as
decorative articles. Moreover, the large sizes of the steins
makes them unwieldy and in order to drink from them 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.
The eagle stein's smaller capacity also suggests that it is
to be used as a decorative article. This stein could store a
small amount of liquid, approximately 6 fluid ounces compared to
the capacity of a regular stein. However, this would result in
the user having to continually refill the mini-stein.
Furthermore, the small handle and the small opening at the top
make the stein difficult to grasp, control and drink from without
spilling the contents.
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, 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 HTSUS 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
steins are ornamental articles classified in Heading 6913,
HTSUSA.
HOLDING:
The fishing stein, racing stein and American eagle mini
stein are classified in subheading 6913.90.50, HTSUS, which
provides for other ornamental ceramic articles, other, other.
Pursuant to Section 502(a)(3) of the Trade Act of 1975 (19
U.S.C. Section 2652(a)(3)) and General Note 3(c)(ii)(A), HTSUS,
Brazil has been designated a beneficiary developing country for
the purposes of the Generalized System of Preferences (GSP),
provided for in Title V of the Trade Act of 1974, as amended (19
U.S.C. Section 2461, et seq.). Articles classifiable under
subheading 6913.90.50, HTSUS, which are products of Brazil, are
entitled to duty-free treatment under the GSP upon compliance
with all applicable requirements.
The protest should be allowed in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division