• HQ H226264
• Jan 03, 2014

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

CLA-2 OT:RR:CTF:TCM HQ H226264 TNA

Port Director, Service Port-New York/Newark
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102

Attn: Miriam Destra, Import Specialist

RE: Internal Advice Request; classification of dinnerware

Dear Port Director:

This is in response to your request for internal advice, dated June 11, 2012, 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 a conference 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.

FACTS:

The subject merchandise consists of items from the Brighton, Dover, Roma, and Valencia styles of Marck’s dinnerware. Samples of each item were sent to a U.S. Customs and Border Protection (“CBP”) laboratory for testing. Separate laboratory reports were issued for each item.

The Brighton Style items at issue consist of six plates, and one platter. All have a finished white body, are translucent and absorb less than 0.5% of their weight in water. CBP’s laboratory found that these items do not contain phosphorous, and all meet the definition of porcelain found in Additional U.S. Note 5(a) to Chapter 69, HTSUS. Furthermore, they all contain a logo identifying them as “ITI, China, 5-1.”

Several items of the Dover style are at issue here: one saucer, four bowls, four plates, and a platter. These items all contain a logo identifying them as “ITI, China, 5-1.” CBP’s laboratory found that the items of the Dover line meet the definition of porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS, contain no phosphorous, and absorb less that 0.5% of their weight in water. In addition, many of the samples obtained by the CBP laboratory contained an adhesive label affixed to the back of the plate that read “International Tableware, Inc.,” and identified the item by item number, style, and item type. At the November 15, 2012 meeting with CBP, counsel conceded that the Dover line of Marck’s merchandise is made of porcelain.

Several items of the Roma style are at issue here: three bowls, two plates, and a platter. The samples received by the CBP laboratory all contained a logo in black lettering which reads “ITI China.” After testing these items, the laboratory found that they had off-white bodies, were translucent, absorbed less than 0.5% of their weight in water, and contained no phosphorous. The laboratory concluded that these items are porcelain within the meaning of Note 5(a) to chapter 69, HTSUS. One item of the Valencia style, a plate, is at issue here. The sample received by the CBP laboratory contains a logo on the back of the plate, whose black lettering read “ITI China 6-2.” After testing, the lab found that the plate is white in color and absorbs 0.18% of its weight in water and conforms to the definition of porcelain of Note 5(a) to Chapter 69, HTSUS.

Marck has been entering the merchandise of the Roma and Valencia 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.” Marck has been entering items of the Brighton and Dover styles 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:

(a) 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…

We first address classification at the heading level as between headings 6911, HTSUS, and 6912, HTSUS. We note that the CBP laboratory concluded that Style Numbers BR-5, TBR-16, BR-6, BR-8, BR-9, DO-2, DO-24, DO-11, DO-10, DO-4, DO-8, DO-31, DO-5, DO-7, DO-34, BR-13, BR-7, WRO-15, RO-10, RO-5, VA-7 are made of porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS. Furthermore, counsel conceded that Marck’s Dover line is made of porcelain. Hence, these items 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.”

The CBP laboratory concluded that Item Number RO-12 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.”

The CBP laboratory did not make a specific finding as to the composition of Item Numbers RO-11 and RO-3 within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS. Nonetheless, it made a finding with respect to each of the factors in determining 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 Roma bowl, item number RO-11, Laboratory Report NY20111494 concluded that it has a white fired body, is not translucent in a thickness of several millimeters, and absorbs 0.17% of its weight in water. Thus, while RO-11 contains two of the three characteristics of porcelain, it is lacking the third and therefore cannot be classified as porcelain on heading 6911, HTSUS. As a result, RO-11 is described by the terms of heading 6912, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.”

With respect to the Roma plate, Style Number RO-3, Laboratory Report NY20111492 concluded that it has a white fired body, is not translucent in a thickness of several millimeters, and absorbs 0.53% of its weight in water. Thus, RO-3 lacks two of the three factors of porcelain and cannot be classified as such. As a result, it is described by the terms of heading 6912, which provides for “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.”

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 also 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 restaurant plates 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; 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. The styles at issue are white and plain. Each piece is round and stackable. Furthermore, a number 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.

Furthermore, 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 and that it has a low water absorption rate. See www.international tableware.com/aboutus.aspx.

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.

The same is true for the items of the subject merchandise that we have classified in heading 6912, HTSUS. Items of the Roma style are white and plain, round and stackable with a one-quarter inch rim. Furthermore, not all are 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. 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 style is not enough, by itself, to indicate that these dishes are for household use. These items have also been vitrified, which is further evidence that it is intended for hotel or restaurant use.

In its April 30 submission, Marck argues that the fact that a logo may be embossed on their merchandise is an inaccurate assessment of class or kind, because the assessment of class or kind must be made at the time of importation, and the subject merchandise is never decorated at the time of importation. In response, we note that 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 in restaurants and hotels.

In its April 30 submission, Marck also disputed 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 hotel or restaurant use, and we find Marck’s objection to this characterization to be unfounded.

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.

(2) Environment of sale and (3) channels of trade: In HQ 082780, CBP examined sales data in the context of the multiple factors that, as a whole, determined whether the merchandise was for household or industrial use. The percentage of total sales to hotels and restaurants varied according to the pattern of chinaware and year of the sales. For example, in 1985, 49% of the sales of the pattern Petite Fleur was to hotels and restaurants, while in 1986, the percentage was 17.44%. Furthermore, certain patterns had sales to hotels and restaurants varying from 70% to 100% in 1983. In 1986, “the total sales to hotel and restaurants was 11.16% for household dinnerware, and 11.35% for household bone china,” but these percentages were based on sales of all patterns, rather than on specific patterns. The actual percentage of sales for each of the specific patterns ranged from zero to 45.05%, depending on the pattern. In addition to sales data and the general physical characteristics of the merchandise, HQ 082780 examined other factors such as the importer’s catalogue advertising of these chinaware patterns. There, we found that merchandise’s chief use was the use that exceeded all other uses. Thus, in HQ 082780, factors such as sales percentages and the amount that restaurants and hotels used household china neither established nor constituted chief use. Therefore, CBP held that the china at issue belonged to the class of china chiefly used as household china. See HQ 082780.

Furthermore, in NY C88291, the merchandise at issue was white porcelain tableware that was marketed and sold for hotel, restaurant and household use. There, the importer submitted information to indicate that approximately 60 percent of the “Acapulco” patterned dinnerware was sold to hotel and restaurant users; the remaining 40 percent was sold to retailers. CBP found that the percentage of sales indicated that hotel and restaurant use exceeded all other uses. See NY C88291.

In the present case, Marck, in its November 7 submission, presented data in support of its claim that 60-65% of its merchandise is for household use. 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. Furthermore, the merchandise at issue is marketed under the ITI dinnerware line.

Marck submitted a catalogue for ITI, the line to which the imported special order is similar. Its catalogue shows the 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 quantities of at least one dozen, and many items are sold in quantities of two or three dozen, large quantities that speak to it being for restaurant or hotel use. Taken together, these factors favor hotel or restaurant use. As a result, the vast majority of Marck’s sales are for commercial use. This is in contrast to HQ W967570, where 75% of the merchandise was sold for household use. As a result, we find that Marck has not shown that the 60-65% of its merchandise is for household 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. As a result, the vast majority of Marck’s sales are for commercial use.

The same is true for the items of the subject merchandise that we have classified in heading 6912, HTSUS. Here as well, the ITI catalogue shows the 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. The Roma fruit bowl, for example, is sold in quantities of three dozen, and the Roma platter is sold in quantities of two dozen. These are large quantities that speak to this merchandise being for restaurant or hotel use. 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. Items of the Roma style are described as “Dishwasher safe, heavy duty, chip resistant, fully vitrified ceramic, thermal shock and impact resistant,” and “good for a variety of uses.” See http://www.samsclub.com/sams/ 7-1-4-oz-roma-bouillon-cup-american-white-36/127497.ip?navAction=push. Taken together, these factors favor hotel or restaurant use. As a result, the vast majority of Marck’s sales are for commercial use.

(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 merchandise classified in heading 6911, HTSUS, and that classified in heading 6912, HTSUS.

(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 hotel uses.

(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 supports both uses for all items at issue here.

(7) Economic practicality of using the merchandise: CBP examined prices for the subject styles in ITI’s catalogue and on ITI’s website. The Dover oatmeal bowl, item number DO-11, sells in quantities of three dozen for $66.25. As another example, the Dover Plate, item number DO-8, sells in quantities of two dozen for $94.50. 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, by contrast, sales in this quantity and price result in a low price per plate; for example, the prices quoted above for Item Number DO-8 is equivalent to less than $4 a plate. Given the quantity and low price at which these items are sold, it is is more likely that a hotel or restaurant would purchase them. It is just as unlikely that a family would purchase two dozen plates for use in the home. Hence, this factor supports classification as being for restaurant or hotel use for both the items we have classified in heading 6911, HTSUS, and those classified in heading 6912, HTSUS. In sum, the Carborundum factors indicate that item BR-5, TBR-16, BR-6, BR-8, BR-9, DO-2, DO-24, DO-11, DO-10, DO-4, DO-8, DO-31, DO-5, DO-7, DO-34, BR-13, BR-7, WRO-15, RO-10, RO-5, VA-7 are for restaurant/hotel use. Six of the seven factors speak in favor 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); 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. Lastly, in HQ 082780, after reviewing the Carborundum factors, CBP concluded that “the mere fact that the subject [household] china may possess some characteristics which permits its use in hotels and restaurants does not establish that it is chiefly used in hotels and restaurants.” As a result, in the present case, having six of the Carborundum factors point to 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 RO-3, RO-11 and RO-12 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.

With respect to your question of whether, in the alternative, CBP should consider only sales of the particular style at issue to determine principal use, we note that class or kind is defined more broadly than the single shipment at issue. However, sales data for the particular style at issue is relevant to the factors CBP considers in determining principal use. See, e.g., United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. As a result, while sales of a particular style at issue is one factor that should be considered in a principal use determination, this one factor cannot, by itself, determine principal use.

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:

Principal use is determined by the use of an entire class or kind rather than the use of a specific import or shipment; as a result, a company’s overall sales can be considered to determine classification, but sales of a specific import could also be used as one factor in the Carborundum analysis.

Following such an analysis, under the authority of GRI 1, BR-5, TBR-16, BR-6, BR-8, BR-9, DO-2, DO-24, DO-11, DO-10, DO-4, DO-8, DO-31, DO-5, DO-7, DO-34, BR-13, BR-7, WRO-15, RO-10, RO-5, and VA-7 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, RO-3, RO-11, and RO-12 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