• HQ H169055
• Jan 03, 2014

• Type : Classification • HTSUS : 6911.10.10; 6912.00.20
•  Modified by:   H252124     Related:   965177; 957282; 958346; 963748; 958647; 960552; 959745; 082780; C88291; 962208; 957520; W967535; W967570   

CLA-2 OT:RR:CTF:TCM HQ H169055 TNA

Port Director, Detroit Metropolitan Airport
U.S. Customs and Border Protection
Edward H. McNamara Terminal2596 World Gateway PlaceDetroit, MI 48242

Attn: Beverly Quentin, Import Specialist

RE: Internal Advice Request; classification of dinnerware

Dear Port Director:

This is in response to your request for internal advice, dated May 20, 2011, concerning the classification of tableware imported by Marck & Associates (“Marck” or “the importer”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). In reaching our decision, we have taken into consideration additional arguments made during conferences between members of my staff and Marck’s counsel on August 11, 2011 and November 15, 2012, as well as supplemental submissions made on July 7, 2011, November 7, 2011, September 24, 2012, and April 30, 2013. We regret the delay in responding.

FACTS:

The subject merchandise consists of six styles of tableware: Granada, Verona, Sydney, York, Dover and Roma. CBP’s National Commodity Specialist Division (“NCSD”) sent a sample of each style of the subject merchandise to a U.S. Customs and Border Protection (“CBP”) laboratory for testing. Separate laboratory reports were issued for each item. In addition, a second set of samples was sent to the laboratory for analysis following CBP’s November 15, 2012 meeting with Marck’s counsel. This second set consisted of a sample from the Verona style and a sample from the Granada style.

The Dover style items at issue here are a bowl and a plate. They are both plain, white, and round. After testing, CBP’s laboratory found these items to be translucent with an elemental composition of a clay based product that absorbs less than 0.5% of its weight in water. The laboratory concluded that these items conform to the definition of porcelain found in Additional U.S. Note 5(a) to Chapter 69, HTSUS.

The Granada style items at issue here are a plate, a platter, two saucers and a bowl. They are glazed and beige with brown spots and have a dark brown trimming. Following testing, the CBP laboratory found that the Granada plate was white, and that the rest these items are off-white or beige, not translucent in a thickness of several millimeters, and absorb less than 0.5% of their weight in water. The laboratory concluded that the Granada bowl and two saucers met the definition of porcelain within the meaning of Note 5(a) to Chapter 69, HTSUS.

In addition to the laboratory reports issued by CBP’s New York laboratory, the Port sent a sample of the Granada plate to CBP’s laboratory in Chicago for analysis. The resulting laboratory report, Report Number CH20100869, dated September 28, 2010, determined that the plate was of porcelain ceramic and had a water absorption value of 0.08 percent by weight. Furthermore, the laboratory determined that the article met the requirements of a ceramic article detailed in Additional U.S. Note 5(a) to Chapter 69, HTSUS.

Two items from the Roma style are at issue here: a serving dish and a plate. They are both plain and white. Following testing, the CBP laboratory determined that the serving plate is not translucent and absorbs 4.1% percent of its weight in water. The laboratory concluded that it meets the definition of earthenware of Additional U.S. Note 5(c) to Chapter 69, HTSUS. The laboratory found that the plate is translucent in several millimeters, and absorbs approximately 0.46% of its weight in water. The laboratory concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS.

One platter from the Sydney style is at issue here. It is a plain white platter with shallow scalloped edges. The rim is edged in black. Following testing, the laboratory found that this platter is a glazed clay ceramic that has a white body and is translucent in a thickness of several millimeters. It absorbs 0.20% of its weight in water. The laboratory concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS.

Three items of the Verona style are at issue here: a fruit bowl, a plate, and a platter. They are ivory-colored with green trim. The bottom of the plate is inscribed with the “ITI” logo on it; “ITI” stands for “International Tableware Incorporated.” Following testing, the CBP laboratory found that it absorbed 0.04% of its weight in water and concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS. The CBP laboratory retested the fruit bowl, and the laboratory confirmed its findings that it meets Note 5(a)’s definition of porcelain. The laboratory found that the Verona plate has a white body, is a glazed clay ceramic, is translucent and absorbs approximately 0.55% of its weight in water. The laboratory found that the platter has an off-white body, is not translucent, and absorbs 0.14% if its weight in water. The laboratory noted that it does not contain phosphorus, and is therefore not bone china. Furthermore, the elemental analysis conducted by the laboratory indicates that it is consistent with clay material. One item of the York Style, a grapefruit bowl, is at issue here. It is a white bowl with shallow ridges around the rim. It is stamped with the phrase “ITI China 7-1.” Following testing, the laboratory found that it is not translucent and that it absorbs 0.29% of its weight in water. Its elemental composition is consistent with a clay-based product.

Following the November 15, 2012 meeting with CBP, Marck sent samples of its merchandise to an independent expert for testing. The resulting report, issued on April 30, 2013 by William D. Carty, Ph.D., of Ceramic Engineering & Materials Consulting and Testing Services, tested the Granada Fruit Bowl (Product Number GR-11) and the Roma Oval Welsh Rarebit, (item number WRO-8-AW). This report concluded that the GR-11 had a thickness of 3.94 millimeters, an average light transmission of 0.4%, and was opaque, not translucent, and not porcelain. This report concluded that the WRO-8-AW had a thickness of 4.00 millimeters, an average light transmission of 0.4%, was opaque, not translucent, and not porcelain.

Marck has been entering the merchandise of the Granada, Verona, Sydney, York, and Roma styles under subheading 6912.00.39, HTSUS, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Available in specified sets: In any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $38.” The items of the Dover style have been entered under subheading 6911.10.37, HTSUS, which provides for “Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other: Other: Available in specified sets: In any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $56: Aggregate value not over $200.” Marck also claims that 60-65% of the subject merchandise is sold for household use, and that the remaining 35-40% is sold for restaurant or hotel use.

ISSUES:

1. Whether the subject merchandise is classified in heading 6911, HTSUS, as porcelain tableware, or under heading 6912, HTSUS, as ceramic tableware?

2. Whether the subject merchandise is classified as for hotel or restaurant use, or for other (household) tableware?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

The HTSUS provisions under consideration are as follows:

6911 Tableware, kitchenware, other household articles and toilet articles, of porcelain or china:

6911.10 Tableware and kitchenware:

6911.10.10 Hotel or restaurant ware and other ware not household ware Other: Other: Available in specified sets: In any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $56: 6911.10.37 Aggregate value not over $200 * * * 6912.00 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: 6912.00.20 Hotel or restaurant ware and other ware not household ware Other: Available in specified sets: 6912.00.39 In any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $38

Additional U.S. Note 5 to Chapter 69, HTSUS, states, in pertinent part, the following:

For the purposes of headings 6909 through 6914:

The terms “porcelain,” “china” and “chinaware” embrace ceramic ware (other than stoneware), whether or not glazed or decorated, having a fired white body (unless artificially colored) which will not absorb more than 0.5 percent of its weight of water and is translucent in thicknesses of several millimeters. The term “stoneware” as used in this note, embraces ceramic ware which contains clay as an essential ingredient, is not commonly white, will absorb not more than 3 percent of its weight of water, and is naturally opaque (except in very thin pieces) even when absorption is less than 0.1 percent…

(c) The term “earthenware” embraces ceramic ware, whether or not glazed or decorated, having a fired body which contains clay as an essential ingredient, and will absorb more than 3 percent of its weight of water.

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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 (Aug. 23, 1989).

The EN to heading 6911, HTSUS, provides, in pertinent part:

See the Explanatory Note to heading 69.12.

The EN to heading 6912, HTSUS, provides, in pertinent part:

Tableware, kitchenware, other household articles and toilet articles are classified in heading 69.11 if of porcelain or china, and in heading 69.12 if of other ceramics such as stoneware, earthenware, imitation porcelain (see General Explanatory Note to sub-Chapter II).

The General Explanatory Note to sub-Chapter II of heading 6912, HTSUS, provides, in pertinent part:

(I) PORCELAIN OR CHINA

Porcelain or china means hard porcelain, soft porcelain, biscuit porcelain (including parian) and bone china. All these ceramics are almost completely vitrified, hard, and are essentially impermeable (even if they are not glazed). They are white or artificially colored, translucent (except when of considerable thickness), and resonant. Hard porcelain is made from a body composed of kaolin (or kaolinic clays), quartz, feldspar (or feldspthoids), and sometimes calcium carbonate. It is covered with a colorless transparent glaze fired at the same time as the body and thus fused together.

Soft porcelain contains less alumina but more silica and fluxes (e.g., feldspar). Bone china, which contains less alumina, contains calcium phosphate (e.g., in the form of bone ash); a translucent body is thus obtained at a lower firing temperature than with hard porcelain. The glaze is normally applied by further firing at a lower temperature, thus permitting a greater range of underglaze decoration…

The subject merchandise has undergone laboratory testing on numerous occasions to determine whether it is porcelain of heading 6911, HTSUS, or ceramic of heading 6912, HTSUS. Not only were certain items of the subject merchandise tested twice by CBP laboratories, Marck also submitted samples to an independent laboratory. This independent laboratory’s result conflicted with those of the CBP laboratory, and Marck asserts that CBP should accept the findings of the independent laboratory over the results of the CBP laboratory.

In response, we note that pursuant to 28 U.S.C. § 2639 (a) (1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); American Sporting Goods v. United States, 27 C.I.T. 450; 259 F. Supp. 2d 1302; 25 Int’l Trade Rep. (BNA) 1345; 2003 Ct. Intl. Trade LEXIS 45. Furthermore, it is “well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (“Alcoa”). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the Customs’ laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399; American Sporting Goods, 27 C.I.T. 450.

In the present case, Marck has neither argued that CBP’s laboratory used incorrect testing methods, nor presented evidence that would call these methods into question. Simply presenting one set of laboratory results that is inconsistent with CBP’s conclusions is not enough to rebut CBP’s presumption of correctness. Furthermore, we note that the independent laboratory simply notes that the merchandise is opaque rather than translucent and concludes that the merchandise is not porcelain. The findings do not address the merchandise’s water absorption or color, the other two factors that Note 5(a) to Chapter 69, HTSUS, requires for porcelain. As a result, we find the results of the independent laboratory to be inconclusive, and we adhere to CBP’s laboratory results. This is consistent with prior CBP rulings. See HQ 965177, dated August 29, 2002; HQ 957282, dated March 28, 1995; HQ 958346, dated February 6, 1996; HQ 963748, dated November 20, 2000.

Hence, both items in the Dover style, the Granada Fruit Bowl (GR-11), Granada Saucers (GR-2 and GR-2C), the Roma Plate (item number RO-8), the Sydney Platter (item number SY-12), and the Verona Bowl (item number VE-11) are made of porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS, and cannot be classified in heading 6912, HTSUS. To the contrary, they are described by heading 6911, HTSUS, which provides for “Tableware, kitchenware, other household articles and toilet articles, of porcelain or china.”

With respect to the Roma Bowl (item number WRO-8-AW), the CBP laboratory concluded that it met the definition of ceramic articles and of earthenware within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS. As a result, it is described by the terms of heading 6912, HTSUS, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.”

With respect to the remaining items of the subject merchandise, the CBP laboratory did not make a specific finding as to whether these items were porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS, because these items did not meet all three factors as required by the Note. Nonetheless, the laboratory made a finding with respect to each of the factors that determine whether an item is porcelain under Note 5(a). All three factors are required for an item to be considered porcelain within the meaning of Note 5(a). See Additional U.S. Note 5(a) to Chapter 69, HTSUS; see also HQ 958647, dated June 16, 1997. As a result, we now examine the remaining items in light of these factors to determine whether they are porcelain.

With respect to the Granada Plate, item number GR-9, Laboratory Report #NY 201201310 concluded that it absorbs 0.45 percent of its weight in water, is white but not translucent in a thickness of several millimeters, and contains an elemental composition consistent with a clay-based product. Thus, the Granada Plate contains only two of the three elements necessary to be porcelain. Furthermore, it is a clay-based product, which is an essential element of a stoneware product as defined in Note 5(a); under the terms of the Note, stoneware excludes porcelain. As a result, we find that item number GR-9 is precluded from being classified as a porcelain product of heading 6911, HTSUS. It is therefore classified in heading 6912, HTSUS, as “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.”

With respect to the Granada Platter, item number GR-12, Laboratory Report #NY 20120313, concluded that it is off-white, is not translucent, and absorbs 0.39% of its weight in water. Furthermore, the laboratory concluded that its elemental analysis is consistent with clay material. Thus, the Granada Platter lacks two of the three characteristics of porcelain, and has an essential element of stoneware. As a result, item number GR-12 is precluded from being classified as porcelain of heading 6911, HTSUS, and is instead described by the terms of heading 6912, HTSUS.

With respect to the Verona Plate, item number VE-9, Laboratory Report #NY20120306 found that it has a white body, is translucent and absorbs approximately 0.55% of its weight in water. Thus, the Verona Plate meets two of the three criteria to be considered porcelain but does not meet the third requirement. As a result, we find that the Verona Plate is described by the terms of heading 6912, HTSUS.

With respect to the Verona Platter, item number VE-34, Laboratory Report #NY20120312, found that the Verona Platter has an off-white body, is not translucent, and absorbs 0.14% if its weight in water. The laboratory noted that it does not contain phosphorus, and is therefore not bone china. Furthermore, the laboratory concluded that the Verona Platter has an essential element of clay. Thus, the Verona Platter lacks two of the three characteristics of porcelain and has an essential characteristic of stoneware. As such, it is described by the terms of heading 6912, HTSUS.

With respect to the York Bowl, item number Y-10, Laboratory Report #NY 20120316, found that it is white but not translucent. Furthermore, the laboratory found that it absorbs 0.29% of its weight in water, and that its elemental composition is consistent with a clay-based product. Thus, the York Bowl lacks one of the criteria of porcelain set out in Note 5(a), and it is a clay-based product. As such, it is precluded from being classified as porcelain of heading 6911, HTSUS; instead, it is described by the terms of heading 6912, HTSUS.

There is no dispute that the instant merchandise is tableware and kitchenware within the meaning of the six-digit level of both headings at issue under GRI 6. Rather, the issue is whether the instant merchandise belongs to the class or kind of goods described as “hotel or restaurant ware and other ware not household ware.” This provision has been found to be a use provision. See HQ 960552, dated March 2, 1999; HQ W967535, dated July 1, 2005; HQ 959745, dated July 20, 1998. To determine principal use, CBP has consistently applied the factors that the court established in United States v. Carborundum Company. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. These factors include: 1) general physical characteristics; 2) expectation of the ultimate purchaser; 3) channels of trade; 4) environment of sale (accompanying accessories, manner of advertisement and display); 5) usage of the merchandise; 6) economic practicality of so using the import; and 7) recognition in trade of this use. See United States v. Carborundum Company, 63 CCPA 98. See also United States v. The Baltimore & Ohio R.R. Co., 47 C.C.P.A. 1; C.A.D. 719 (C.C.P.A. 1959). See also Lenox Collections v. United States, 20 C.I.T. 194; 18 Int’l Trade Rep. (BNA) 1181; 1996 Ct. Intl. Trade LEXIS 38; SLIP OP. 96-30 (Ct. Int’l Trade 1996). CBP has applied this principle in subsequent rulings. See, e.g., HQ 082780, dated December 18, 1989. Courts have also stated that principal use is defined as the use which “exceeds all other uses.” See Lenox Collections, 20 C.I.T. 194, 196. See also NY C88291, dated December 11, 1998.

In HQ 082780, dated December 18, 1989, CBP classified a number of patterns of china dinnerware that were produced chiefly for household use, but were also marketed and sold to hotels and restaurants for use in their finer dining sections. After reviewing the evidence presented, CBP found that household china is different from hotel china in both physical and design characteristics because hotel china is heavier in weight and is stackable and chip resistant. The plates of hotel china also generally do not have a center design. CBP also found that hotel china is generally less expensive than household china and is offered for sale by independent sales representatives to wholesalers or hotel chains, an industry that also has its own trade publications and trade shows. Furthermore, if the dinnerware were marked with the crest or initials of the establishment, this spoke in favor of it belonging to the class chiefly used in hotels or restaurants. By contrast, household china was found to be generally lighter in weight, more expensive, and did not possess some of the characteristics of hotel ware. See HQ 082780.

Furthermore, in HQ W967570, dated January 31, 2008, CBP considered whether Pillivuyt’s porcelain tableware and kitchenware was principally for household use or hotel and restaurant use. In an analysis similar to the one undertaken in HQ 082780, CBP cited prior rulings and various reference books to determine what physical characteristics are indicative of household use versus restaurant and hotel use. In American china, such characteristics included composition, translucency, degree of absorption, and a very high mechanical shock resistance. Thickness was also a significant factor, as one cited source divided American hotel china, which it described as “vitrified ware of very high strength,” into three grades based on wall thickness: Grade (1), “Thick china,” which had 5/16 to 3/8 inch walls and is used in lunch counters and army messes; Grade (2), “Hotel China,” which contained 5/32 to ¼ inch walls and were used in hotels and restaurants; and Grade (3), “medium-weight China”, which had less than ¼ inch walls and was used in high-class eating places, home use, and also for numerous jars, trays, etc., in hospitals. See HQ W967570; HQ 959745, dated July 20, 1998; HQ 962208, dated April 19, 2000; Rexford Newcomb, Jr., Ceramic Whitewares, Pitman Publishing Corp., New York (1947) at pp. 222 and 227; Felix Singer & Sonja S. Singer, Industrial Ceramics, Chemical Publishing Co., Inc., New York (1963), at p. 1096. We note that dishes’ thickness has long been considered a relevant factor in determining the use of the merchandise. See, e.g., HQ 959745, dated July 20, 1998; HQ W967570.

HQ W967570 also examined trade publications to determine the physical characteristics that are standard for restaurant and hotel ware, and stated, “the single greatest thing a hotel demands and we produce are plain, white, round plates.” See HQ W967570, citing an article by Villeroy & Boch, USA at http://findarticles.com/p/ articles/mi_m3072/is_7_219/ai_n6028235.

HQ W967570 then examined the rest of the Carborundum factors. Three out of the seven factors conclusively indicated household use, while the remaining four were inconclusive. As a result, HQ W967570 found that Pillivuyt’s French porcelain was for household use. We acknowledge that the standards in the rulings that we have cited here have been developed for merchandise of heading 6912, HTSUS. However, because the terms of the subheadings of headings 6911 and 6912, HTSUS, are identical, these standards are also instructive for products of 6911, HTSUS.

In the present case, we apply the Carborundum factors, first to the merchandise that we have classified in heading 6911, HTSUS, as follows: (1) physical characteristics. While items of the Dover, Roma and Sydney styles are white and plain, items of the Verona style have green trim and items of the Granada style are beige or off-while and have brown speckles on them. Each of these pieces is round and stackable. Furthermore, many are not translucent, and the ones that are translucent are not delicate dishes; to the contrary, many of the styles at issue have been glazed and all of them are heavy dishes that are durable and able to withstand heavy use. In addition, samples that CBP obtained of each of these styles contain the logo of International Tableware Incorporated. International Tableware Incorporated (“ITI”) is Marck’s restaurant supply line. These characteristics are indicative of restaurant or hotel use. We note that while most restaurant or hotel dishes are plain white, the styling of the Verona and Granada styles is not enough, by itself, to indicate that these dishes are for household use.

In its April 30 submission, Marck disputes CBP’s characterization of ITI as its restaurant supply line, calling this description “inaccurate on its face.” In response, we note that a copy of the ITI catalogue that Marck publishes was submitted among the various documents that CBP has received in this case. The last page of this catalogue offers guidance in “estimating dinnerware needs.” This section states, “to figure out your exact needs… multiply the number of seats in your restaurant by the ordering factor, then divide by 12.” The table included there splits its bowls, plates, etc in to the groups of “fine dining,” “casual,” and “institutional.” The same catalogue page contains a table that can be used to estimate flatware needs whose columns are labeled “amount in service times seats” and “reserve times seats.” These factors clearly indicate restaurant use, and we find Marck’s objection to this characterization to be unfounded. Moreover, the embossed logo on the merchandise as entered further implicates restaurant use.

In addition, one characteristic of commercial china is that it is vitrified. Restaurant China, Volume 1: Identification and Value Guide for Restaurant, Airline, Ship, and Railroad Dinnerware states that “during vitrification the body components fuse together, making the china: (1) non-porous, thus resisting penetration of liquids even when glaze is worn or chipped and (2) more durable, resisting breakage caused by heat and handling.” See Barbara J. Conroy, Restaurant China, Volume 1: Identification and Value Guide for Restaurant, Airline, Ship, and Railroad Dinnerware, Collector Books, Paducah (1998) at p. 7. In the present case, Marck’s website states that the subject merchandise has been vitrified. See www.internationaltableware.com/aboutus.aspx. The subject merchandise’s low water absorption rate also indicates that it has been vitrified.

Vitrified china is defined as “fired at a higher temperature and vitrified during the first (bisque) firing, then fired at a lower temperature (glaze or gloss firing).” See Barbara J. Conroy, Restaurant China, Volume 1: Identification and Value Guide for Restaurant, Airline, Ship, and Railroad Dinnerware, Collector Books, at page 7 (Paducah 1998). In short, vitrification makes dinnerware more durable and resistant to chipping, factors which indicate restaurant or hotel use. See, e.g., HQ W967570; HQ 957520, dated June 16, 1997. Marck misunderstands the importance of vitrification in the tariff analysis, claiming that their vitrified product is commercial china. However, “commercial china” is not the tariff term we are analyzing here. Rather, the hardness of the dishware is what is indicative of restaurant use.

Marck has also submitted data showing that the thickness of the rims of item numbers DO-16, DO-120, and SY-12 is ¼” or less. This measurement is indicative of medium weight China, used in “high-class eating places, home use, and in hospitals.” See HQ W967570, citing an article by Villeroy & Boch, USA at http://findarticles.com/p/articles/ mi_m3072/is_7_219/ai_n6028235.

At the August 11 conference and in its November 7 submission, Marck argued the thickness standards espoused by HQ W967570 are no longer as relevant as they were when the sources cited were first published several decades ago. Marck argues that in the intervening years, the distinction between dishes for hotels and restaurants and those used in the home have blurred as consumers buy restaurant ware for household use precisely for its clean looks and sturdiness. Nevertheless, medium-weight vitrified dishes, such as the ones at issue here, still favor the class or kind of dishes used in restaurants or hotels.

The same is true of the subject merchandise that we have classified in heading 6912, HTSUS. While items of the Roma and York styles are white and plain, items of the Verona style have green trim and items of the Granada style are beige or off-while and have brown speckles on them. Each of these pieces is round and stackable with a one-quarter inch rim. Furthermore, many are not translucent, and the ones that are translucent are not delicate dishes; to the contrary, many of the styles at issue have been glazed and all of them are heavy dishes that are durable and able to withstand heavy use. In addition, samples that CBP obtained of each of these styles contain the ITI logo. Furthermore, Marck’s website states that the subject merchandise has been vitrified, and that it has a low water absorption rate. See www.internationaltableware.com/aboutus. aspx. These characteristics are indicative of restaurant or hotel use. We note that while most restaurant or hotel dishes are plain white, the styling of the Verona and Granada styles is not enough, by itself, to indicate that these dishes are for household use.

(2) Environment of sale and (3) channels of trade: Marck, in its November 7 submission, presented data in support of its claim that 60-65% of its merchandise is for household use for both the porcelain and the ceramic articles at issue. In examining this data and the list of companies to which Marck sells, we found that Marck sells a significant percentage of its merchandise to companies that emboss logos on it and resell it. Marck attributes these sales to household use. We disagree with this assessment, as a logo is one factor in favor of commercial use. Merchandise with these types of logos are sold for commercial purposes, such as support of a university or other institution. Furthermore, we note that the fact that the merchandise is often used for this type of embossing speaks to its thickness, resistance, and ability to withstand the embossing process- all characteristics of the class or kind of merchandise that would be used more in restaurants and hotels than in the home.

Furthermore, the ITI catalogue that Marck submitted shows the subject merchandise arranged in the same manner as one would expect in a restaurant or hotel, with food arranged on it in the manner one would expect to receive it in a restaurant. Furthermore, the merchandise advertised in this catalogue is sold in high quantities. All of the items of the Dover style, for example, are sold in quantities of at least one dozen, and most of the items of this style are sold in quantities of at least three dozen. These are large quantities that speak to this merchandise being for restaurant or hotel use.

In its April 30 submission, Marck argues that it is a wholesaler that sells in quantities of a dozen or more to stores such as Crate and Barrel for their open stock, rather than directly to consumers for household use in such high quantities. As such, Marck argues that this factor indicates household use rather than restaurant or hotel use. In response, we note that these high quantities, when coupled with the higher prices of these items and inclusion of items such as Welsh rarebit dishes and other items that are less likely to be used in the home, all indicate restaurant or hotel use as a whole, even if a percentage of Marck’s sales are for open stock.

In addition, Marck claims that its merchandise is sold through stores such as Sam’s Club and The Market Collections.com. In examining how the subject merchandise is displayed on these websites, we note that Sam’s Club calls pieces of the Granada line “easily used as serving dishes in any restaurant.” Other pieces “add high end experience to any culinary establishment.” See www.samsclub.com. Taken together, these factors favor hotel or restaurant use. As a result, the vast majority of Marck’s sales are for commercial use for both the ceramic and the porcelain items at issue here.

(4) Expectation of ultimate consumer: many of Marck’s ultimate consumers are in the foodservice industry, expect to use the subject merchandise in hotels, restaurants, etc., and expect the high durability and appearance that characterizes the dishes that are used in restaurants and hotels. The ultimate consumer expects the same of restaurant-quality dishes. Thus, even when consumers purchase these products for home use, they expect their dishes to look like and last as long as the dishes used in the foodservice industry. Thus, this factor speaks in favor of hotel and restaurant use for both the porcelain and the ceramic articles at issue here.

(5) Usage of the merchandise: based on Marck’s submitted sales data, it is clear that the subject merchandise is bought both by the foodservice industry and retail stores. However, the discussion of factors (2) and (3) concluded that the majority of Marck’s sales were to commercial entities. Based on the evidence discussed there, we find that the majority of the subject merchandise’s usage is in restaurants and hotels.

(6) Recognition of use in the trade: The subject merchandise is also recognized in the trade as being bought and sold for both the household and in restaurants and hotels. Thus, this factor also supports both uses for both the porcelain and the ceramic articles at issue here.

(7) Economic practicality of using the merchandise: with respect to the porcelain items at issue, CBP examined prices for the subject styles in ITI’s catalogue and on ITI’s website. For example, the Dover Pasta Bowl, item number DO-120, sells in quantities of one dozen for $270.50. As a last example, the Dover Plate, item number DO-16, sells in quantities of one dozen for $142.25. In W967570, the fact that French porcelain at issue was significantly more expensive than similar porcelain from China and Thailand was a factor in favor of household use because restaurants and hotels would be less likely to purchase expensive materials because of the amount of breakage involved. In the present case, however, the higher prices are warranted by the size and quality of the items. For example, a family is unlikely to purchase one dozen pasta bowls that sell for $270.50 for household use. It is just as unlikely that a family would purchase two dozen platters, especially when these platters sell for $128.75 a dozen. A restaurant, however, would likely purchase pasta bowls by the dozen, and platters in quantities of two dozen. Hence, this factor supports classification as being for restaurant or hotel use.

With respect to the ceramic articles at issue, CBP examined prices for the subject styles in ITI’s catalogue and on ITI’s website. The prices for the York Grapefruit Bowl, for example is $106.25 for one dozen bowls. As another example, the Granada Plate, item number GR-9, sells in quantities of two dozen for $89.50. The Granada Platter, item number GR-12, sells in quantities of two dozen for $120.75. Here, sales in this quantity and price result in a low price per item. Given the quantity and low price at which these items are sold, it is more likely that a hotel or restaurant would purchase them. A family is unlikely to purchase two dozen platters for household use. Hence, this factor supports classification as being for restaurant or hotel use.

In sum, the Carborundum factors indicate that item numbers DO-120, DO-16, GR-11, GR-2, GR-2C, RO-8, SY-12, VE-11 are for restaurant/hotel use. Six of the seven factors are indicative of hotel or restaurant use. We acknowledge that the other factor supports both uses. However, when some or all of the factors applied here have been analyzed in the courts, a determination of principal use has been based on all or most of the factors addressed being determinative. See, e.g., Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (Ct. Intl. Trade 2006-1); St. Eve International v. United States, 267 F.Supp.2d 1371 (Ct. Int’l Trade, 2003), G. Heileman Brewing Co. v. United States, 14 CIT 614, 620 (1990); Lenox Collections v. United States, 20 C.I.T. 194; United States v. Carborundum Co., 63 CCPA 98. Furthermore, in W967570, CBP found in favor of household use even though only three factors spoke in favor of household use and the other four were inconclusive. As a result, in the present case, having six of the Carborundum factors point in favor of restaurant/hotel use is enough to find that Marck’s merchandise belongs to the class or kind of goods principally for commercial use.

The Carborundum factors indicate that items WRO-8-AW, GR-9, GR-12, VE-9, VE-34, and Y-10 are for restaurant/hotel use. Six of the seven factors are indicative of hotel or restaurant use. As a result, we find that these items belong to the class or kind of goods principally for commercial use. As such, they are described by the terms of subheading 6912.00.20, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Hotel or restaurant ware and other ware not household ware.”

In its April 30 submission, Marck argues that its dinnerware has been rejected by restaurant chains and has failed testing for restaurant use, in part because the rims of the dishes were less chip resistant than other competition samples. In response, we note that we are examining the merchandise to determine whether it belongs to a certain class or kind. Marck’s dinnerware contains the same characteristics as hotel or restaurant ware. The fact that certain restaurant chains have rejected it as compared to a competitor’s merchandise has little bearing on these characteristics, especially without an analysis of the competition’s merchandise.

Lastly, we note that the subject merchandise was entered in subheadings 6911.10.37 and 6912.00.39, HTSUS, subheadings that require that the subject merchandise be imported in sets. The term “sets” is defined in Additional U.S. Note 6 to Chapter 69, HTSUS. However, we note that Marck has filed multiple lawsuits in the Court of International Trade regarding the importation of their ceramic cups and mugs. See, e.g., C.I.T. Court Number 08-00306, among others. The issue in each of these cases is whether the merchandise is available in specified sets. Thus, because this litigation is currently ongoing we could not respond to the question of specified sets even if it were pertinent to the classification. HOLDING:

Under the authority of GRI 1, the Dover Pasta Bowl (item number DO-120), the Dover Plate (item number DO-16), the Granada Fruit Bowl (GR-11), Granada Saucers (GR-2 and GR-2C), the Roma Plate (item number RO-8), the Sydney Platter (item number SY-12), the Verona Bowl (item number VE-11), and the Verona Plate (item number VE-9) are classified in heading 6911, HTSUS. They are specifically provided for in subheading 6911.10.10, HTSUS, which provides for “Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Hotel or restaurant ware and other ware not household ware.” The applicable duty rate is 25% ad valorem.

Under the authority of GRI 1, the Roma Bowl (item number WRO-8-AW), the Granada Plate (item number GR-9), the Granada Platter (item number GR-12), the Verona Platter (item number VE-34), and the York Bowl (item number Y-10) are classified in heading 6912, HTSUS. They are specifically provided for in subheading 6912.00.20, HTSUS, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Hotel or restaurant ware and other ware not household ware.” The applicable duty rate is 28% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on CBP’s website, located at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division