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HQ 952714

January 27, 1993

CLA-2 CO:R:C:M 952714 NLP


TARIFF NO.: 6912.00.44

District Director
United States Customs Service
7911 Forsythe Blvd
Suite 625
St. Louis, MO 63105

RE: Protest No. 4503-91-100027; ceramic beer steins; headings 6911 and 6913; Explanatory Notes to headings 6912 and 6913; G. Heileman Brewing Co. v. United States; U.S. Rule of Interpretation 1(a); HRLs 084122, 088838, 089243, 950177, 950390 and 950430

Dear Sir:

The following is our decision concerning the Protest and Request for Further Review No. 4503-91-100027, dated December 4, 1991. At issue is the classification of ceramic beer steins under the Harmonized Tariff Schedule of the United States (HTSUS).


The articles at issue are ceramic non-porcelain steins referred to as the Logo Series. Three sample steins were submitted for our review. Each stein measures 5-1/2 inches in height and 3-1/2 inches in diameter at the top. They are tan in color and have a plain smooth inner and outer surface. Each stein is decorated with a different decal. One stein has the "Bud Dry" logo decal, another has the "Budweiser" logo and the third stein has the "Anheuser" logo: the letter "A" with an eagle. The steins were imported from Germany.

Upon importation, the ceramic steins were classified in subheading 6912.00.44, HTSUS, which provides for "[c]eramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: [t]ableware and kitchenware: [o]ther: [o]ther: [o]ther: [m]ugs and other steins."

The protestant contends that the steins are classified in subheading 6913.90.50, HTSUS, which provides for "[s]tatuettes and other ornamental ceramic articles: [o]ther: [o]ther: In support of his contention, the protestant cites Headquarters Ruling Letter (HRL) 089243, dated October 7, 1991, and G. Heileman Brewing Co. v. United States, Slip-Op 90-87 (Sept. 6. 1990) (hereinafter referred to as Heileman).


Are the ceramic steins classified in subheading 6912.00.44, HTSUS, or in subheading 6913.90.50, HTSUS?


The classification of goods under the HTSUS 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.

The protestant argues that heading 6912, HTSUS, is a use provision and as the steins are not principally used as kitchenware or tableware, they are not classified in heading 6912, HTSUS. The protestant contends that the steins are principally used for display and ornamentation and are classified in heading 6913, HTSUS.

The protestant is correct in his position that heading 6912, HTSUS, is a use provision. In HRL 084122, January 9, 1990, Customs dealt with the classification of sculptured porcelain molds. This case involved the interpretation of heading 6911, HTSUS, which provides for "[t]ableware, kitchenware, other household articles and toilet articles, of porcelain and china" and heading 6913. HRL 084122 stated that heading 6911, HTSUS, 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.

Therefore, for articles to be classified within heading 6911, HTSUS, they 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, HTSUS, and heading 6912, HTSUS, are essentially the same provisions, the only difference being that heading 6911, HTSUS, covers tableware, kitchenware, etc..., made of porcelain or china, while heading 6912, HTSUS, covers the same article made of other than porcelain or china. As a result, because heading 6911, HTSUS, is considered a use provision, heading 6912, HTSUS, would also be considered a use provision. Therefore, for the instant steins to be classified in heading 6912, HTSUS, their principal use would have to be as tableware or kitchenware.

Although tableware and kitchenware are not defined in the HTSUS, exemplars of such articles are listed in the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 6912, HTSUS. The 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."

Though protestant asserts that his position is supported by the Heileman decision, we cannot ignore the ENs to heading 6913 in determining the classification of the ceramic steins. We find that these ENs support the classification of the steins as tableware in heading 6912, HTSUS, and not as ornamental articles in heading 6913, HTSUS. The ENs to heading 6913 state, on page 923, 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, 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 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 in this heading.

HRL 950177, dated August 25, 1992, dealt with the classification of a variety of steins. Some of these steins were 5-6 inches in height and weighed 1 pound 10 ounces. After importation, these steins were to be decorated with a decal. Customs held that these steins served a useful purpose no less efficiently than their plainer counterparts and that the usefulness of these steins was not clearly subordinate to their ornamental character.

These steins were smaller than the highly ornamented steins classified in previous rulings. See, HRL 950430, dated January 23, 1992, which classified, inter alia, a fishing stein and a racing car stein that were 8-1/2 inches high; HRL 950390, dated October 7, 1991, which classified a military stein that was 9 inches high; and HRL 088838, dated October 7, 1991, which classified a sporting dog stein that was 9-1/2 inches high. Moreover, we determined that the smaller steins were not unwieldy to drink from and their weight, once full, would not be prohibitive. The smaller size of these steins, unlike the larger steins,( whose capacity indicated that they were not intended to hold larger quantities of beer) suggested that they were intended to be used as beer steins.

Finally, we held that the type of decals on the smaller steins were not as ornate as the high relief decorations found on the many steins, such as those classified in the above rulings and in HRL 089243. This type of decoration is less prone to fading and obliteration after repeated washings.

In HRL 950177, we also noted that, in HRL 950430 (cited above), Customs held that mini steins, which were 4-1/2 inches high, were classified in heading 6913, HTSUS, as ornamental articles. However, these steins were distinguishable from the small steins in HRL 950177 as they were ornately decorated with high relief and raised representations and could only hold 6 fluid ounces. The smaller handles and openings made the mini steins hard to hold and difficult to drink from. Therefore, based on the mini steins' much smaller capacities and raised decorations, Customs determined that the steins were not designed essentially to serve a useful purpose and they were classified as ornamental articles.

It is our position that the steins at issue are also of that class or kind of article which are used as tableware no less efficiently than their counterparts. The subject steins are very similar in size, shape, design and construction to the smaller steins classified in HRL 950177. Their capacity of 1/2 liter suggests that they are not unwieldy to drink form. They are also decorated with decals which are less prone to fading and eroding. Thus, the steins are considered tableware and are classified in subheading 6912.00.44, HTSUS.


The protest is denied. A copy of this decision should be attached to the CUstoms Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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