CLA-2 RR:CTF:TCM 967989 BtB
Port Director
U.S. Customs and Border Protection
Los Angeles-Long Beach Seaport
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
RE: Internal Advice 05-028; Interpretation of “available in specified sets” maximum size requirements of Additional U.S. Note 6 to Chapter 69, HTSUSA
Dear Port Director:
This is in reference to your memorandum dated November 1, 2005, in which you forwarded a request for internal advice from counsel on behalf of Noritake Co., Inc. (“Noritake”), dated June 24, 2005, pursuant to section 177.11(b)(2) of the Customs and Border Protection (“CBP”) Regulations. At issue is whether an article may exceed the dimensional requirements of Additional U.S. Note 6(b) to chapter 69, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), and be classified as being “available in specified sets” in heading 6911 or 6912, HTSUSA.
FACTS:
Noritake imports ceramic tableware articles in specific patterns. Noritake claims that it offers for sale sets consisting of at least the articles listed in Additional U.S. Note 6(b) in such patterns. Some of the tableware articles in these sets, however, exceed the maximum dimensions set forth in Additional U.S. Note 6 to Chapter 69, HTSUSA, for such respective articles.
Noritake posits that this note should be interpreted to include articles with larger dimensions, as well as articles with equal or smaller dimensions. Noritake asserts that a provision in the Tariff Classification Study, a report prepared by the United States Tariff Commission in 1960 supports this interpretation.
ISSUE:
Whether an article may exceed the dimensional requirements of Additional U.S. Note 6 to Chapter 69, HTSUSA, and be classified as being “available in specified sets” in heading 6911 or 6912, HTSUSA.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Additional U.S. Note 6 to Chapter 69 reads:
6. For the purposes of headings 6911 and 6912:
The term "available in specified sets" embraces plates, cups, saucers and other articles principally used for preparing, serving or storing food or beverages, or food or beverage ingredients, which are sold or offered for sale in the same pattern, but no article is classifiable as being "available in specified sets" unless it is of a pattern in which at least the articles listed below in (b) of this note are sold or offered for sale.
(b) If each of the following articles is sold or offered for sale
in the same pattern, the classification hereunder in subheadings 6911.10.35, 6911.10.37, 6911.10.38, 6912.00.35 or 6912.00.39, of all articles of such pattern shall be governed by the aggregate value of the following articles in the quantities indicated, as determined by the appropriate customs officer under section 402 of the Tariff Act of 1930, as amended, whether or not such articles are imported in the same shipment:
12 plates of the size nearest to 26.7 cm in maximum dimension, sold or offered for sale,
12 plates of the size nearest to 15.3 cm in maximum dimension, sold or offered for sale,
12 tea cups and their saucers, sold or offered for sale,
12 soups of the size nearest to 17.8 cm in maximum dimension, sold or offered for sale,
12 fruits of the size nearest to 12.7 cm in maximum dimension, sold or offered for sale,
1 platter or chop dish of the size nearest to 38.1 cm in maximum dimension, sold or offered for sale,
1 open vegetable dish or bowl of the size nearest to 25.4 cm in maximum dimension, sold or offered for sale,
1 sugar of largest capacity, sold or offered for sale,
1 creamer of largest capacity, sold or offered for sale.
If either soups or fruits are not sold or offered for sale, 12 cereals of the size nearest to 15.3 cm in maximum dimension, sold or offered for sale, shall be substituted therefor.
The meaning of Additional U.S. Note 6 to Chapter 69 is plain and unambiguous. As a general rule, where the meaning of the statute is plain and unambiguous, that meaning prevails. See Muwwakkil v. Office of Personnel Management, 18 F.3d 921 (Fed. Cir. 1994). If the statute's text answers the question of Congress' intent, "that is the end of the matter" and it is not necessary to examine legislative history or employ other means of statutory interpretation. International Business Machines Corp. v. United States, 201 F.3d 1367, 1372 (Fed. Cir. 2000); Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998); Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 788 (Fed. Cir. 1988); Koyo Seiko Co., Ltd. v. United States, 24 CIT 364, 110 F.Supp.2d 934, 936 (2000).
CBP has applied the plain meaning of “maximum” in Additional U.S. Note 6 to Chapter 69, HTSUSA, beginning at least as far back as August 8, 1994, the date of issuance of HQ 955838, which we believe to be the first ruling issued concerning the dimensional requirements of the HTSUSA note. In HQ 955838, we addressed whether a 20.3 cm plate could be substituted for the “12 cereals of the size nearest to 15.3 cm in maximum dimension, sold or offered for sale” [which can be substituted for soups or fruits]. In that ruling, we stated:
Customs is of the opinion that the subject articles do not meet the necessary size requirements to be considered "available in specified sets". As the measurements in the note above indicate, a "cereal" cannot exceed 15.3 cm. Protestant's plate is 20.3 cm. It is too large to be substituted for a fruit plate or a cereal bowl. Therefore, the dinnerware is not considered "available for sale in specified sets". The protested pieces are classifiable in subheading 6912.00.48, HTSUS, as other ceramic tableware and kitchenware.
The language of Additional U.S. Note 6 to Chapter 69 is unequivocal. See Headquarters Ruling Letter (“HQ”) 967792 and HQ 967920, which revoke New York Ruling Letter (“NY”) B88253 dated July 30, 1997, and NY 813612, dated September 13, 1995, respectively, because these NY rulings were not in accord with the plain meaning of the note. Proposed revocations of these NY rulings, along with proposed versions of HQ 967792 and HQ 967920 appeared in Vol. 39, No 50 of the Customs Bulletin dated December 7, 2005. Final versions of these HQ rulings will be published in Vol. 34, No 8 of the Customs Bulletin dated February 15, 2006. As stated in these rulings, the word “maximum” in the note means “the greatest possible quantity or degree; the greatest quantity or degree reached or recorded; the upper limit of variation.”
In this case, Additional U.S. Note 6 to Chapter 69, HTSUSA, plainly permits classification of articles in headings 6911 and 6912, HTSUSA, as being “available in specified sets” only if they meet the note’s specific and definite terms. The intent of the provision is clear and, hence, that is the end of the matter; it is unnecessary to examine legislative history or employ other means of statutory interpretation. Additionally, the application of the plain meaning of the note is not absurd; articles are consistently evaluated according to their dimensions.
Even had it been necessary to examine the legislative history of Additional U.S. Note 6 to Chapter 69, HTSUSA, in this matter, note that the Tariff Classification Study provides legislative history for interpreting and understanding the Tariff Schedule of the United States Annotated (“TSUSA”), the defunct predecessor of the HTSUSA. While this report did indicate that the dimensions for table and kitchen pottery claimed to be “available in specified sets” could be larger or smaller than the dimensional requirements set forth for such articles in the TSUSA, no similar note was adopted for the HTSUSA. We believe that this evidences Congress’ intent that no such tolerances should apply to Additional U.S. Note 6 to Chapter 69, HTSUSA. In fact, there is nothing in terms of the headings or legal notes of the HTSUSA, or the EN, evidencing that the “maximum” dimensional requirements of Additional U.S. Note 6 to Chapter 69, HTSUSA, mean anything other than “maximum.”
HOLDING:
The language of Additional U.S. Note 6 to Chapter 69 is unequivocal. “Maximum” means maximum. An article cannot exceed the dimensional requirements of Additional U.S. Note 6(b) to chapter 69, HTSUSA, and be
classified as being “available in specified sets” in heading 6911 or 6912, HTSUSA.
You are to mail this decision to the internal advice applicant 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other means of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division