CLA-2 CO:R:C:M 955057 MMC
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
Commercial Rulings Division