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HQ 950390


October 7, 1991

CLA-2 CO:R:C:M 950390 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.50

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 Sincerely,

John Durant, Director
Commercial Rulings Division

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