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HQ 966115

March 25, 2003

CLA-2 RR:CR:GC 966115 JGB


TARIFF NO.: 6913.10.50

Port Director
U.S. Customs and Border Protection Bureau 2nd and Chestnut Streets
Attention: Team 173
Philadelphia, PA 19106

RE: Internal Advice 02/018; Ornamental Ceramic Beer Tankards

Dear Port Director:

This is in response to your memorandum of November 19, 2002, forwarding Internal Advice Request (IA) 02/018, dated October 8, 2002, initiated by counsel on behalf of The Franklin Mint. The IA seeks proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) of various ornamental ceramic beer tankards. The current entries have been made through the Port of Philadelphia of the U.S. Customs and Border Protection Bureau (CBP).


The tankards are characterized by an ornate flat design on the exterior of the tankard body. Samples presented are about 5 inches in height and 3¾ inches in diameter. They have a fluid capacity of 8 to 12 oz. All are marketed to collectors of beer tankards. According to information submitted, similar tankards imported by the inquirer appear to have substantial after-market value and are offered for sale on internet web sites and in specialty collectibles stores at prices exceeding their initial suggested retail price. The planned themes of the collector tankards include automobiles, race car drivers, motorcycles, nature, and sports. CBP considers beer tankards essentially similar to beer steins with steins more commonly made from earthenware as opposed to porcelain.

Heavy alloy metal lids molded in relief to match the theme of the individual tankard are permanently affixed to the tankards with hinges. The lids open perpendicular to the lip of the tankard. Each tankard which is sold individually and not in identical sets is marked on the bottom to indicate the name of the tankard series, the artist who designed the scene or decal on the exterior, and the name of the foundation or organization which authorized the importer to produce the article. Hand washing with a soft cloth is recommended for the tankards as the decals that decorate the external sides of the tankard are stated not to be dishwasher safe.

The tankards were entered in subheading 6911.10.45, HTSUS, the provision for "Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other: Other: Other: Mugs and other steins."

The internal advice requestor states that the merchandise is classified in subheading 6913.10.50, HTSUS, the provision for "Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.”


Whether the subject tankards are classified in heading 6911, HTSUS, as porcelain tableware, kitchenware and other household articles, or in heading 6913, HTSUS, as statuettes and other ornamental ceramic articles.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 6911, HTSUS, provides for tableware, kitchenware, other household articles and toilet articles, of porcelain or china. The Harmonized Commodity Description and Coding System Explanatory Notes for the HTS, although not dispositive, are to be looked to for the proper interpretation of the HTS. EN(A) to Heading 6912, which serves as the EN for goods of Heading 6911 that are porcelain or china, 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." Emphasis supplied.

In Headquarters Ruling Letter (HQ) 084122, dated 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. HQ 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.

According to HQ 084122, for an article to be classified within Heading 6911, HTSUS, it must be principally used as tableware or kitchenware.

Since Heading 6911, HTSUS, is considered a "use" provision, for the instant tankards to be classified in Heading 6911, HTSUS, their principal use would have to be as tableware and kitchenware. An examination of the physical characteristics of the tankards at issue, as well as evidence presented of the use of the tankards principally for display by beer tankard collectors, this office is convinced that the tankards in question are principally used for ornamenting or decorating and not as tableware. Therefore, they are excluded from classification as tableware within Heading 6911, HTSUS.

Heading 6913, HTSUS, provides for statuettes and other ornamental ceramic articles. The EN to Heading 6913, HTSUS, 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 ENs to Heading 6913, HTSUS, states that 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 in this heading.

Applying Part B of the EN to Heading 6913, we further find that an examination of the beer tankards and the evidence presented support a conclusion that the subject tankards do not appear to be designed essentially to serve a useful purpose and their elaborate decoration is not secondary to their usefulness. The steins are marked with a label which reads "NOT FOR FOOD USE--FOOD CONSUMED FROM THIS VESSEL MAY BE HARMFUL. THIS IS A DECORATIVE ACCESSORY" or, according to counsel, a substantially similar warning. The tankards 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 decorative decals on the tankards.

The classification of decorated ceramic beer steins has been dealt with in G. Heileman Brewing Co. v. United States, 14 CIT 614 (1990). The issue in that case was whether the imported ceramic steins were classifiable as mugs or other steins in item 533.30, Tariff Schedules of the United States (TSUS), the precursor to the HTSUS, 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 HTSUS. 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[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). 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 tankards are ornamental articles classified in Heading 6913, HTSUS.

This decision in accord with HQ 089243, dated October 7, 1991, HQ 950177, dated August 25, 1992, HQ 952714, dated January 27, 1993, and HQ 964472, dated February 8, 2002. In prior decisions, this office had found steins to be used principally for decorative purposes when the size and decorative details were so great that they would be awkward to drink from or of such value in their ornate details that they would be impractical to use for consuming beverages. By contrast in the instant case, the articles are clearly marked with a "care and usage" label indicating that they require hand washing. While a hand washing requirement is not uncommon with respect to delicate porcelain articles that are utilitarian, i.e., they do permit food and beverage service, the instant articles also have the label quoted supra, indicating that food consumed from the vessel may be harmful. This is sufficient to support the claim that the goods are not offered for sale principally for the consumption of beverages. The other cited decisions dealt with smaller steins that were not awkward to drink from and did not possess high relief decorations that would have made them less useful as beverage containers. The steins in HQ 952714, for example, which were classified in Heading 6912, HTSUS, were "tan in color and ha[d] a plain smooth inner and outer surface" and each was "decorated with a different decal." Such non-elaborate decoration and simple design was indicative of articles designed to serve beverages. Therefore, the application of the instant decision does not rule out an entire class of goods that are properly classified in subheadings 6911.10.41, 6911.10.45, 6912.00.41, 6912.00.44, HTSUS, depending on the material from which it is made and whether it has a permanently attached pewter lid.


The instant tankards are classified in subheading 6913.10.50, HTSUS, which provides for other ornamental ceramic articles, of porcelain or china, other.

This decision should be mailed by your office to the party requesting internal advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to appropriate CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial Rulings Division

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