CLA 2 RR:CR:GC 960552 PH
Port Director
U.S. Customs Service
1000 2nd Avenue, Suite 2100
Seattle, WA 98104-1049
RE: Protest 3001-97-100139; plates and trays
Dear Port Director:
This is in response to protest 3001-97-100139, which pertains to the tariff classification of certain plates and trays under the Harmonized Tariff Schedule of the United States (HTSUS). Illustrations and samples were submitted for our examination. We regret the delay in this matter.
FACTS:
Five entries, filed July 18, 1995, and May 31, June 28, July 16, and September 13, 1996, are included in the protest, which is against the classification of certain plates and trays. The invoice for the May 31, 1996, entry describes the articles included in the protest as 6 1/2" embossed plates, 4" ivory plates, and 4" black plates. A sample of each of these plates was obtained by Customs at the port of entry for examination by Customs laboratory. The plates were found to be of porcelain.
Two samples of the merchandise claimed to be in the protested entries were submitted with the protest. One is rectangular in shape with semi-scalloped gold trimmed edges and measures approximately 8 X 10". The other sample is a round plate, similar to a saucer to be used with a tea cup, with gold trim and measures approximately 6" in diameter. The protestant states that it imports these and other porcelain articles for the purpose of mounting a photograph for the ultimate purchaser. Promotional literature accompanying the protest illustrates a photograph attached to a plate by a glazing process.
The July 18, 1995, entry was liquidated on February 9, 1996, with no duty. The first three entries filed in 1996 were liquidated on November 29, 1996, and the September 13, 1996, entry was liquidated on January 3, 1997, with classification in subheading 6911.10.52, HTSUS. On February 27, 1997, the broker for the importer filed this protest, arguing that the plates and trays should be classified in subheading 6913.90.50, HTSUS, because they are used for "ornamental and decorative purposes" and "[the importer] does not sell any items [it] import[s] to any buyers for tableware purposes as this is not [its] market." The protestant states that once the photograph is affixed to a plate or tray, the article is provided with a warning label and care instructions not to clean it with anything other than a soft cloth with warm water. The protestant contends that headings 6911 and 6913 are "actual use" tariff provisions. The protestant cites Customs rulings (Headquarters Ruling Letter (HQ) 086827 dated July 17, 1990; HQ 084122 dated January 9, 1990; HQ 950430 dated January 28, 1992; and New York (Ruling Letter (NY) 881713 dated February 5, 1993) and Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) 69.11 and 69.13 in support of its position.
ISSUE:
Whether the plates and trays are classifiable as statuettes and other ornamental ceramic articles in heading 6913, HTSUS, or tableware, kitchenware, other household articles and toilet articles, of porcelain or china in heading 6911, HTSUS.
LAW AND ANALYSIS:
Initially, we note that insofar as the four 1996 entries are concerned, the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)). The protest is untimely as to the July 18, 1995, entry, liquidated February 9, 1996. Further, since that entry was liquidated with no duty, it is not clear what decision is protested. The law governing protests requires a protest to set forth "distinctly and specifically ... each category of merchandise ...[,] ... the nature of each objection and the reasons therefor ... and ... any other matter required by the Secretary [of the Treasury] by regulation" (19 U.S.C. 1514(c)(1)(B) through (D)). The Customs Regulations issued under this law require "[a] specific description of the merchandise ..." and that "[t]he nature of, and justification for the objection [be] set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal" (19 CFR 174.13(a)(5) and (6)). Accordingly, the protest must be denied as to the July 18, 1995, entry, both for untimeliness and failure to meet the basic requirements for a protest (see above).
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the
classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
The 1996 HTSUS headings under consideration are as follows:
6911: Tableware, kitchenware, other household articles and toilet articles of porcelain or china
6913 Statuettes and other ornamental ceramic articles
As applied to the merchandise under consideration, these headings are controlled by use (other than actual use) (i.e., they are "principal use" provisions). See E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT 1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20, 25, 748 F.2d 663 (1984). The Stewart-Warner case held that a provision for bicycle speedometers was a "chief use" provision (the decision was in regard to the predecessor to the HTSUS, the Tariff Schedules of the United States (TSUS), under which chief use, instead of principal use, was determinative of tariff provisions for use (other than actual use)). In giving the rationale for its decision, the Court stated "[l]ogic indicates that ‘bicycle speedometers’ is a term ‘controlled by use’ ... because the noun ‘bicycle’ acts as an adjective modifying ‘speedometer’ in a way that implies use of the speedometer on a bicycle" (3 Fed. Cir. (T) at 25). In E.M. Chemicals, a similar analysis was applied to an HTSUS provision. The Court stated about "principal use" provisions:
While some provisions expressly declare that classification of designated merchandise is dependent upon principal use, in most cases, principal use is implied from the language of the HTSUS. In other words, ‘[a] designation by use may be established although the word "use" or "used" does not appear in the language of the statute.’" [citation omitted] [923 F. Supp. at 207]
Citing Stewart-Warner, supra, the Court concluded that the term "coloring matter" is a principal use provision, on the basis that the word "coloring" acts as an adjective modifying the word "matter" (923 F. Supp. at 207). See, in addition to the foregoing cases, Hartz Mountain Corp. v. United States, 19 CIT 1149, 1150, 903 F. Supp. 57 (1995), in which the Court stated "[w]hen ‘household’ is used in conjunction with the term ‘articles’ ... a use provision is created [and] [c]lassification under this kind of use provision is determined by the principal use in the United States, at the time of importation, of the class or kind of goods to which the imported goods belong" (emphasis in original).
Similarly, in the case of headings 6911 and 6913, HTSUS, as applied to the plates and trays, "household" is an adjective modifying "articles" (heading 6911 is for tableware, kitchenware and other household articles, indicating that tableware and kitchenware are also included as household articles), and "ornamental" is an adjective modifying "ceramic articles" so that consideration of principal use is necessitated. In regard to such provisions, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
In the absence of special language or context which otherwise requires (a) 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.
In other words, the article's principal use in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).
Thus, in this case, it is the principal use in the United States use at the time of importation of plates and trays of the class or kind of the imported plates and trays which determines their proper classification. If they are of the class or kind principally used as ornamental articles they are classified in heading 6913, and in heading 6911 if of the class or kind principally used as household articles, regardless of whether these particular articles may actually be used for a different purpose, and regardless of whether after importation they may be processed so that their use is different than the principal use of their class or kind at the time of importation.
The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. (See Kraft, Inc, v. United States, 16 CIT 483 (1992), G. Heileman Brewing Co. v. United States, 14 CIT 614 (1990), and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (1976).)
The general physical characteristics of the plates do not differ from those of ordinary ceramic plates used as tableware (see EN 69.12(A)). Although the expectation of the ultimate purchaser may be that the plates (after they are processed by the addition of a photograph, which occurs after importation) will be used for ornamental purposes, in their condition as imported (having the physical characteristics of ordinary ceramic plates used as tableware) there is no evidence that the expectation of an ultimate purchaser of plates of this class or kind would be other than to use them as such plates. Similarly, there is no evidence in regard to the remaining criteria (environment of sale, use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use) that plates of the class or kind of the imported plates, in their condition as imported would be used other than the general physical characteristics indicate. The plates are of the class or kind of tableware, kitchenware, or other household articles and are classified in heading 6911, HTSUS. In that heading, they are classifiable as other tableware and kitchenware, plates not over 22.9 cm in maximum diameter and valued over $8.50 but not over $31 per dozen, in subheading 6911.10.52, HTSUS.
In regard to the trays, we have previously ruled that similar trays are classified in heading 6911 (see HQ 086827, cited by the protestant), primarily on the basis of their physical characteristics (i.e., "[t]hey ... have the appearance of picture frames" (HQ 086827)). On the same basis (the general physical characteristics of the trays), we see no reason to disturb that ruling. The trays, as described in HQ 086827 and above, are classified in heading 6913, as other ornamental ceramic articles of porcelain or china, in subheading 6913.10.50, HTSUS (provided that the trays are of porcelain, as defined in Additional U.S. Note 5, Chapter 69, HTSUS, as all materials in the file indicate). However, we note that according to the invoice for the May 31, 1996, entry, no trays were imported in that entry. Obviously, the protest can only be granted in regard to the trays to the extent that trays were imported in the protested entries and the liquidated classification was at a rate higher than that in subheading 6913.10.50, HTSUS (1996).
The above conclusions are consistent with the rulings cited by the protestant. HQ 086827 is followed, insofar as the trays are concerned, and may not be followed for the plates because of the distinctions in the general physical characteristics of the articles (see above). Similarly, the basis for the classification of the porcelain molds in heading 6911 in HQ 084122 was the physical characteristics of the articles ("... an examination of the porcelain molds themselves, and the evidence which you have presented [marketing literature and reports on tests on how the forms of the articles affected their use], support a conclusion that the usefulness of the molds is clearly subordinate to their ornamental character" (HQ 084122)). The articles in HQ 950430 and NY 881713 were ceramic beer steins, so elaborately ornamented that "[they] do not appear to be designed essentially to serve a useful purpose and their elaborate decoration is not secondary to their usefulness" (HQ 950430). As stated above, the general physical characteristics of the plates under consideration do not support such a conclusion (i.e., in their condition as imported, they are of the class or kind of ordinary ceramic plates, not elaborately ornamented articles).
The conclusions of this ruling are also consistent with EN’s 69.11 and 69.13, cited by the protestant. That is, EN 69.12 states that heading 69.11 and 69.12 (EN 69.11 incorporates EN 69.12 by reference) include "[t]ableware such as ... plates [and many other kinds of dining ware]." EN 69.13 states that heading 6913 covers "[a]rticles which have no utility value but are wholly ornamental" including "[t]ableware and other domestic articles only if the usefulness of the articles is clearly subordinate to their ornamental character ..." (emphasis added).
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For the information of the importer in regard to future imports, we note that the protestant states that "[f]or years the classification used for entering and liquidating these items [the porcelain plates and trays and many other named articles] was [subheading] 6913.90.5000/6.6%, statuettes and other ornamental ceramic articles, other than of porcelain or china, other, other." According to the Customs Form 29 for the plates of the May 31, 1996, entry, samples of the plates were found to be of porcelain. Although we have found the plates not be classifiable as other ornamental ceramic articles in heading 6913, HTSUS, trays and other articles which meet the criteria for classification in heading 6913 (see rulings discussed above) and are of porcelain and not of bone china would be classified as "[s]tatuettes and other ornamental ceramic articles: [o]f porcelain or china: ... [o]ther: ... [o]ther", in subheading 6913.10.50, HTSUS (1999 general rate of duty: free), and not as such articles of other than porcelain or china in subheading 6913.90.50, HTSUS (1999 general rate of duty: 6% ad valorem). The term "porcelain" is defined for purposes of headings 6909 through 6914, HTSUS, in Additional U.S. Note 5, Chapter 69, HTSUS.
* * * * *
HOLDINGS:
(1) The plates are classified as other tableware and kitchenware of porcelain or china, plates not over 22.9 cm in maximum diameter and valued over $8.50 but not over $31 per dozen, in subheading 6911.10.52, HTSUS.
(2) The trays are classified as other ornamental ceramic articles of porcelain or china, in subheading 6913.10.50, HTSUS (provided that the trays are of porcelain, as all materials in the file indicate).
The protest should be DENIED IN PART (as to the July 18, 1995, entry for untimeliness, and as to the plates) and ALLOWED IN PART (as to the trays, solely to the extent that trays were imported in the protested entries and the liquidated classification was at a duty rate higher than that in subheading 6913.10.50, HTSUS (1996) (provided that the trays are of porcelain, as all materials in the file indicate)). In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on
the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division