CLA-2 RR:CR:GC 964472 JGB
Port Director
U.S. Customs Service
4477 Woodson Road
St. Louis, MO 63134
RE: Protest 4503-00-100029; Ornamental Ceramic Beer Steins
Dear Port Director:
This is our decision on Protest 4503-00-100029 filed by counsel for the protestant, Anheuser-Busch Companies, against your decision in the classification of various ornamental ceramic beer steins under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1999, were liquidated during January 2000, and the protest timely filed on March 30, 2000.
FACTS:
The merchandise consists of twenty designs of beer steins, identified as follows:
CB 10 1999 Club Membership Stein
CS 344QVC Louie Character for QVC
CB 14 2000 Club Membership Stein
CS 270 Bass Fishing Stein
CS 412 Fishing III Stein Crappie
CS 416 2000 Holiday Stein
CS 386 Clydesdale at Home Stein
CS 379 Man's Best Friend Lab Stein
CS 393 Coca-Cola Polar Bears Stein
CS 374 Elvis '68 Comeback Giftware Stein
CB 13 99 5yr. Anniversary Stein
CB 13C 99 5yr. Charter Anniversary Stein
CS 371 Bud/Nascar 50th Anniv. Giftware Stein
SOPOST99 99 State Convention Stein
SOPOST 2000 2000 State Convention Stein
CS 282 Bud Label Stein
CS 289 BUD-WEIS-ER Frogs Stein
CS 293 Eagle I: WTR. Fine Grained Stoneware Stein
CS 365 Eagle II Spring Stein
CS 411 2000 St Pats's Stein
All of the steins are characterized by raised relief design on the exterior of the stein body. They range from 2 to 3 pounds in weight when empty. Fifteen are 6" or greater in height. Five are 5½" in height. All are sold in limited quantities, handcrafted, and marketed to collectors of beer steins. According to information submitted, similar steins imported by the protestant in the same series (such as St. Patrick's Day commemoration) appear to have substantial after-market value and are offered for sale on internet web sites and in specialty beer stein stores at prices exceeding their initial suggested retail price.
You classified the steins in subheading 6912.00.44, HTSUS, the provision for "Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Mugs and other steins."
The protestant claims that the merchandise is classified in subheading 6913.90.50, HTSUS, the provision for "Statuettes and other ornamental ceramic articles: Other: Other: Other.”
ISSUE:
Whether the subject steins are classified in heading 6912, HTSUS, as ceramic tableware, kitchen ware and other household articles, or in heading 6913, HTSUS, as statuettes and other ornamental ceramic articles..
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
Heading 6912, HTSUS, 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, 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 (HQ) 084122, dated 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. HQ 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.
According to HQ 084122, for an article to be classified within Heading 6911, HTSUS, 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, 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, since 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 and kitchenware. An examination of the physical characteristics of the steins at issue, as well as evidence presented of the use of the steins by beer stein collectors, Customs is convinced that 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, HTSUS.
Heading 6913, HTSUS, provides for statuettes and other ornamental ceramic articles. The EN to Heading 6913, HTSUS, 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, HTSUS, states that the heading covers:
(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 contai\ner 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 further 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 catalogs, through direct mailings or in retail shops that sell gifts and crafts. 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 larger capacities of the instant 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.
The classification of decorated ceramic beer steins has been dealt with in G. Heileman Brewing Co. v. United States, 14 CIT 614 (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), the precursor to the HTSUS, 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 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[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." 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, HTSUS.
This decision in accord with HQ 089243, dated October 7, 1991, HQ 950177, dated August 25, 1992, and HQ 952714, dated January 27, 1993. The steins under consideration in this decision are substantially similar in their over-all design and use to those considered in HQ 089243. The other cited decisions dealt with smaller steins that were not awkward to drink from and did not possess high relief decorations that would have made them less useful as beverage containers. The steins in HQ 952714, for example, which were classified in Heading 6912, HTSUS, were "tan in color and ha[d] a plain smooth inner and outer surface" and each was "decorated with a different decal." Such non-elaborate decoration and simple design was indicative of articles designed to serve beverages. Therefore, the application of the instant decision does not rule out an entire class of goods that are properly classified in subheadings 6911.10.41, 6911.10.45, 6912.00.41, 6912.00.44, HTSUS, depending on the material from which it is made and whether it has a permanently attached pewter lid.
HOLDING:
The instant steins are classified in subheading 6913.90.50, HTSUS, which provides for other ornamental ceramic articles, other, other.
The protest should be allowed.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division