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HQ 955057




October 17, 1994
CLA-2 CO:R:C:M 955057 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.48

District Director
U.S. Customs Service
9 North Grand Avenue
Room: 135
Nogales, Az 85621

RE: IA 44/93; Ceramic Cookie Jars; ENs 69.13, 69.12; NYRL 839033; HRLs 955999, 956589; F.W. Myers & Co. v. U.S., Gold-Silver & Co. v. U.S., Nissho-Iwai American Corp. v. U.S., Totes, Inc. v. U.S.

Dear District Director:

This is in response to a May 5, 1993, memorandum from your staff, forwarding a request for internal advice concerning the classification of glazed ceramic cookie jars under the Harmonized Tariff Schedule of the United States (HTSUS). The request was initiated by a letter dated April 28, 1993, from counsel, on behalf of Treasure Craft Corporation. Pictures of representative ceramic cookie jars were included.

FACTS:

Based on the initial submission, as well as additional information supplied in a February 17, 1994, meeting in our office and a May 12, 1994, letter from counsel, it is our understanding that the subject articles are Mexican-produced glazed ceramic cookie jars. The clay and glaze are sourced in the U.S.. Water and sodium silicate, which are mixed with the clay when making the jars, are sourced in Mexico.

To make the jars, all materials are mixed together to form a slurry. This mixture is then injected into molds in the form of the desired jar. Once the clay hardens, the unfinished jars are removed from the molds and fired in a kiln. After firing, they are then glazed and returned to the kiln for more firing. After the second firing, the jars are packaged and sent to the U.S.

The subheadings under consideration are as follows:

6912.00.41 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Steins with permanently attached pewter lids; candy boxes, decanters, punch bowls, pretzel dishes, tidbit dishes, tiered servers, bonbon dishes, egg cups, spoons and spoon rests, oil and vinegar set, tumblers and salt and pepper shaker sets

6912.00.48 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other

6913.90 Statuettes and other ornamental ceramic articles: Other

ISSUE:

What is the proper classification for glazed ceramic cookie jars?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Counsel for the importer has suggested that, by application of the principle of construction ejusdem generis , ceramic cookie jars are described by subheading 6912.00.41, HTSUS. We disagree.

Under the rule of ejusdem generis, which means "of the same kind", where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. Nissho-Iwai American Corp. v. U.S. (Nissho-Iwai), 10 CIT 154, 156 (1986). See: Totes, Inc. v. U.S. No. 94-154 CIT 91-06-00423, (September 30, 1994).

Subheading 6912.00.41, HTSUS, is a limited provision. Ceramic cookie jars are neither specifically named in the subheading, nor does the subheading contain a general qualifier, such as "and other articles similarly designed or used" or "of the class or kind". The principle of ejusdem generis does not apply to the subheading's construction. Therefore, the ceramic cookie jars are not described by subheading 6912.00.41, HTSUS.

Counsel for the importer asserts that ceramic cookie jars are not classifiable under subheading 6912.00.48, HTSUS, because the scope of the tariff term "kitchenware" does not include cookie jars. We disagree.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

EN 69.12, p. 922, provides examples of articles embraced by the term "kitchenware. It states, in pertinent part, that:

The headings therefore include:...

(B) Kitchenware such as stew-pans, casseroles of all shapes and sizes, baking or roasting dishes, basins, pastry or jelly moulds, kitchen jugs, preserving jars, storage jars and bins (tea caddies, bread bins, etc.,), funnels, ladles, graduated kitchen capacity measures and rolling-pins...

As discussed above, the principal of ejusdem generis states that where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described. Additionally, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms. Id.

EN 69.12, contains the general phrase "such as". This general phrase indicates that the term "kitchenware" is not limited to the specific examples enumerated in the note and that the priniciple of ejusdem generis applies. Because ejusdem generis applies, the essential characteristic of all the enumerated articles, and whether ceramic cookie jars have that essential characteristic, must be determined.

Customs finds that the essential characteristic of the articles enumerated in the EN as well as the cermaic cookie jars, is the storing or serving of food. All of the enumerated articles either aid in the serving or storing of food. Ceramic cookie jars do the same by storing cookies. This essential characteristic unites the ceramic cookie jar with the enumerated articles of the note. Because the cookie jars have the same essential characteristic as the enumerated articles, the tariff term "kitchenware" describes them.

We note, as the importer has indicated, this understanding of kitchenware's essential characteristic is consistent with prior tariff treatment. Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, 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). Item 533.31 of the Tariff Schedules of the United States (TSUS), the predecessor to heading 6912, HTSUS, specifically provided for the following:

Articles chiefly used for preparing, serving, or storing food or beverages, or food or beverage ingredients.

Because the ceramic cookie jars are principally used to store food, they are considered ejusdem generis with the articles enumerated in the note and therefore, included in the scope of the tariff term "kitchenware".

Finally, counsel for the importer asserts that even if the articles are "kitchenware", subheading 6913.90., HTSUS, more specifically describes the subject articles. We disagree.

EN 69.13, p. 923, states, in pertinent part, that:

This heading covers a wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments).

The heading does not include articles falling in more specific headings of the Nomenclature even if they are suited by reason of their nature or finish for decorative use,...

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 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 this heading...

Subheading 6913, HTSUS, does not describe the subject articles. While they are decorative in nature, their usefulness is in no way clearly subordinate to their ornamental character. Nothing about their ornamental character, including their possibility of increased value over time, prevents their principal use of storing cookies. No decoration prevents the article from holding and dispensing cookies.

This finding is consistent with our determination in New York Ruling Letter (NYRL) 839033 dated April 19, 1989. It held that a 3 inch tea pot was classifiable under heading 6913, HTSUS, as a statute. Its size indicated that it was a miniature with no genuine utility value.

As the ceramic cookie jars are of the class or kind "kitchenware", they are classifiable under subheading 6912.00.48, HTSUS, which provides for ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other.

HOLDING:

The ceramic cookie jars are classifiable under subheading 6912.00.48, HTSUS, with a column one rate of duty of 11.5 percent ad valorem.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Custom Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,

John Durant, Director

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