CLA-2 CO:R:C:M 089243 NLP
District Director
Suite 625
7911 Forsythe Blvd.
St. Louis, MO. 63105
RE: Protest No. 4503-91-100006; ceramic steins; Heading 6912;
Heading 6913;
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 4503-91-100006, dated April 3,
1991. At issue is the classification of ceramic beer steins.
FACTS:
The merchandise which is the subject of this protest
consists of eight styles of beer steins made in Brazil.
Counsel's submission does not state the exact composition of the
beer steins, only that they are made of ceramic. For the
purposes of this ruling, we will presume that the steins are made
up of a ceramic other than porcelain or china.
The Holiday style is a limited edition stein which depicts
the Budweiser Clydesdales. The stein is made of hand crafted
ceramic and is designed by Susan Sampson. The stein is 7 inches
high, 2-3/4 inches in diameter at the top and 4-1/4 inches in
diameter at the bottom. This stein is capable of holding 22
fluid ounces. The Holiday stein is part of a three part holiday
package, marketed by Anheuser-Busch, Inc, which also includes a
collector plate and a signature edition print. These items are
all labeled "An American Tradition" and are signed by Ms.
Sampson.
The Baseball stein is a hand crafted limited edition and
individually numbered stein with a handle designed like a
baseball bat. This stein is packaged in a box designed for gift
giving. The stein depicts in colored high relief various
baseball scenes and carries the legend "America's Favorite
Pastime." The stein is 7-1/2 inches high, 2-3/4 inches across
the top and 4 inches across the bottom. The stein is capable of
holding 32 fluid ounces.
The Football stein is a limited edition and individually
numbered stein with a handle designed like a yard-line marker.
The stein depicts in colored high relief various football scenes
and carries the legend "Gridiron Legacy." This stein is the same
size as the Baseball stein and is also capable of holding 32
fluid ounces.
The Budman stein is a lidded stein in the shape of a rotund
person dressed in red who is wearing a blue cape, gloves and a
yellow belt. The ceramic lid has a metal thumb rest. This stein
is 8-1/4 inches tall and holds 22 fluid ounces. The top of the
stein is the head of the caricature and the bottom is the feet.
The Endangered Species steins depict bald eagles and Asian
tigers in high relief. These steins are individually numbered
and have ceramic inlaid pewter lids. Each stein is 6-1/2 inches
tall, 3 inches across at the top and 3-3/4 inches across the
bottom. The steins are capable of holding 24 fluid ounces.
The Budweiser Label stein shows the Budweiser label and the
natural ingredients used in colorful relief. This stein is 5-
1/2 inches tall, 3 inches across the top and 3-3/4 inches across
the bottom. It is capable of holding 23 fluid ounces.
The Antique Budweiser Label stein depicts the Budweiser
label as it appeared in 1891, complete with German script, eagles
and other decorative features in raised relief. It is the same
size as the above stein.
The instant steins are sold through catalogues produced and
distributed by Anheuser Busch, Inc., through direct mailings by
Anheuser Busch, Inc. and to retail shops, including craft and
gift shops. The importer has submitted various advertising
material which emphasizes the decorative aspects of the steins.
Each stein is described as being handcrafted and numbered.
Certain steins are limited editions and accompanied by a
certificate of authenticity. Moreover, the literature emphasizes
that these steins are intended for use as collectibles. For
example, the direct mailings sent to prospective buyers has the
following opening "Dear Stein Collector."
Your office liquidated the above steins under subheading
6912.00.44, HTSUSA, 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 Anheuser-Busch, Inc. 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 6912 is a
use provision and that the instant steins are not used as
tableware and kitchenware, but as collector's pieces which
ornament and decorate households, offices, etc.... 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
6912.00.44, HTSUSA, which provides for tableware and kitchenware,
other than of porcelain or china, mugs and 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 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 instant 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.
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 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 steins are ornamental articles classified in Heading
6913, HTSUSA.
HOLDING:
The instant steins are classified in subheading 6913.90.50,
HTSUSA, which provides for other ornamental ceramic articles,
other, other.
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