CLA-2 OT:RR:CTF:TCM HQ H188916 TNA
Port Director, Chicago Service Port
U.S. Customs and Border Protection
5600 Pearl Street Rosemont, IL 60018
Attn: Jerry Baxter, Import Specialist
RE: Internal Advice Request; classification of ceramic cup and bowl
Dear Port Director:
This is in response to your request for internal advice, dated October 4, 2011, concerning the classification of porcelain bowls imported by Libbey Glass Inc. (“Libbey” or “the importer”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of ceramic tableware imported by Libbey’s subsidiary, Syracuse China Company (“Syracuse China”). The merchandise was manufactured by Crown Ceramic Co., Ltd. Libbey asserts that Syracuse China is an importer of dinnerware in the food service category.
Two samples were received and examined by this office: a cup with a handle that is Item Number 922222354, and a small bowl that is Item Number 922222355. The cup’s body is beige and its bottom is brown. It measures approximately four inches high by 3.5 inches at its lip, which tapers to a base of approximately two inches. The bowl is beige inside and brown outside; it measures approximately 1.5 inches high by four inches in diameter.
The sample of the cup was sent to a U.S. Customs and Border Protection (“CBP”) laboratory for testing. The resulting laboratory report, numbered NY20112000 and issued December 16, 2011, indicated that the merchandise is composed of clay ceramic and has a water absorption of approximately 0.3% of its weight.
Libbey submitted a laboratory report from the National Metal and Materials Technology Center in Thailand. This report shows the results from a water absorption test performed on a salad plate from the style “Umbra.” The average water absorption of the tested plate was 0.01%. Liberty also submitted a composition report from Crown Ceramics showing that its terracotta clay tableware consists of 55% terracotta clay, 20% flint, 15% feldspar, and 10% china stone.
ISSUE:
Whether the subject tableware is classified in subheading 6911.10.10, HTSUS, as “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,” or in subheading 6912.00.20, HTSUS, as “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.”
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:
6912.00 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”) 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).
Libbey does not suggest a specific classification for the subject merchandise. Because CBP’s laboratory determined that the subject merchandise is composed of ceramic, classification in heading 6211, HTSUS, is precluded, and the merchandise is described by the terms of heading 6212, HTSUS. At the subheading level, we note that subheading 6212.00.20, HTSUS, covers ceramic “hotel or restaurant ware and other ware not household ware.” This subheading 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; HQ W967570, dated January 31, 2008.
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).
In the present case, in terms of general physical characteristics, the subject merchandise, especially the sample of the mug received by this office, is thick, heavy and durable. It is clearly able to withstand the heavy usage of the restaurant and hotel business. This factor speaks in favor of restaurant or hotel use.
Furthermore, Libbey asserts that Syracuse China is an importer of dinnerware in the food service category. Libbey, too, is a food service company that manufactures products for the food service industry. See http://foodservice. libbey.com/. In terms of the channels of trade and environment of sale, both companies sell to restaurants and hotels, and market their products as such. See, e.g., http://www.restaurantsource.com/syracuse-china-dinnerware/Landing. aspx (“Syracuse China designs and manufactures china specifically for the foodservice industry.”); http://foodservice.libbey.com/catalogs/foodservice-tableware-for-professionals/catalog.html. These factors speak in favor of hotel or restaurant ware.
In terms of expectations of ultimate purchasers and usage of the merchandise, user reviews show that customers both expect to use and actually use this merchandise for the food service industry. Syracuse China’s merchandise is also recognized in the trade as restaurant ware. See, e.g., http://reviews.ebay.com/Identifying-Syracuse-China-Patterns-RARE-Designs? ugid=10000000001957301. These three factors also speak in favor of hotel or restaurant ware.
Following this analysis, and taking into account the importer’s assertion its importing subsidiary is a foodservice company, we find that the subject merchandise is for restaurant or hotel use. As such, it is classified 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.” This conclusion is consistent with prior CBP rulings. See, e.g., HQ H226264, dated January 3, 2014; HQ H169055, dated January 3, 2014.
HOLDING:
Under the authority of GRI 1, the subject tableware is classified in heading 6912, HTSUS. It is 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%.
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