HQ 089243

October 7, 1991

CLA-2 CO:R:C:M 089243 NLP

CATEGORY: Classification

TARIFF NO.: 6913.90.50

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