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HQ 950430


January 28, 1992

CLA-2 CO:R:C:M 950430 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90.50

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

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