CLA-2 CO:R:C:M 952714 NLP
District Director
United States Customs Service
7911 Forsythe Blvd
Suite 625
St. Louis, MO 63105
RE: Protest No. 4503-91-100027; ceramic beer steins; headings
6911 and 6913; Explanatory Notes to headings 6912 and 6913;
G. Heileman Brewing Co. v. United States; U.S. Rule of
Interpretation 1(a); HRLs 084122, 088838, 089243, 950177,
950390 and 950430
Dear Sir:
The following is our decision concerning the Protest and
Request for Further Review No. 4503-91-100027, dated December 4,
1991. At issue is the classification of ceramic beer steins
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The articles at issue are ceramic non-porcelain steins
referred to as the Logo Series. Three sample steins were
submitted for our review. Each stein measures 5-1/2 inches in
height and 3-1/2 inches in diameter at the top. They are tan in
color and have a plain smooth inner and outer surface. Each
stein is decorated with a different decal. One stein has the
"Bud Dry" logo decal, another has the "Budweiser" logo and the
third stein has the "Anheuser" logo: the letter "A" with an
eagle. The steins were imported from Germany.
Upon importation, the ceramic steins were classified in
subheading 6912.00.44, HTSUS, which provides for "[c]eramic
tableware, kitchenware, other household articles and toilet
articles, other than of porcelain or china: [t]ableware and
kitchenware: [o]ther: [o]ther: [o]ther: [m]ugs and other steins."
The protestant contends that the steins are classified in
subheading 6913.90.50, HTSUS, which provides for "[s]tatuettes
and other ornamental ceramic articles: [o]ther: [o]ther:
In support of his contention, the protestant cites Headquarters
Ruling Letter (HRL) 089243, dated October 7, 1991, and G.
Heileman Brewing Co. v. United States, Slip-Op 90-87 (Sept. 6.
1990) (hereinafter referred to as Heileman).
ISSUE:
Are the ceramic steins classified in subheading 6912.00.44,
HTSUS, or in subheading 6913.90.50, 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 argues that heading 6912, HTSUS, is a use
provision and as the steins are not principally used as
kitchenware or tableware, they are not classified in heading
6912, HTSUS. The protestant contends that the steins are
principally used for display and ornamentation and are classified
in heading 6913, HTSUS.
The protestant is correct in his position that heading 6912,
HTSUS, is a use provision. In 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 "[t]ableware, 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 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."
Though protestant asserts that his position is supported by
the Heileman decision, we cannot ignore the ENs to heading 6913
in determining the classification of the ceramic steins. We find
that these ENs support the classification of the steins as
tableware in heading 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.
HRL 950177, dated August 25, 1992, dealt with the
classification of a variety of steins. Some of these steins were
5-6 inches in height and weighed 1 pound 10 ounces. After
importation, these steins were to be decorated with a decal.
Customs held that these steins served a useful purpose no less
efficiently than their plainer counterparts and that the
usefulness of these steins was not clearly subordinate to their
ornamental character.
These steins were smaller than the highly ornamented steins
classified in previous rulings. See, 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.
Moreover, we determined that the smaller steins were 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 indicated that they were not intended to
hold larger quantities of beer) suggested that they were intended
to be used as beer steins.
Finally, we held that the type of decals on the smaller
steins were not as ornate as the high relief decorations found on
the many steins, such as those classified in the above rulings
and in HRL 089243. This type of decoration is less prone to
fading and obliteration after repeated washings.
In HRL 950177, we also noted 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 were distinguishable from the
small steins in HRL 950177 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 to drink from. Therefore,
based on the mini steins' much smaller capacities and raised
decorations, Customs determined that the steins were not designed
essentially to serve a useful purpose and they were classified as
ornamental articles.
It is our position that the steins at issue are also of that
class or kind of article which are used as tableware no less
efficiently than their counterparts. The subject steins are very
similar in size, shape, design and construction to the smaller
steins classified in HRL 950177. Their capacity of 1/2 liter
suggests that they are not unwieldy to drink form. They are also
decorated with decals which are less prone to fading and eroding.
Thus, the steins are considered tableware and are classified in
subheading 6912.00.44, HTSUS.
HOLDING:
The protest is denied. 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