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