OT:RR:CTF:CPMMA H282909 AJK
Center Director
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
10980 Hwy 29
Pembina, ND 58271
Attn: Nancy L. Feldman, Import Specialist
RE: Application for Further Review of Protest No. 3401-16-100029; Classification of
Ceramic Knives
Dear Center Director,
This is in reply to the Application for Further Review (AFR) of Protest No.
3401-16-100029, filed on July 7, 2016, on behalf of Batten Industries (Protestant). This Protest and AFR contest U.S. Customs and Border Protection's (CBP) classification of ceramic knives under subheading 6912.00.48, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other."
FACTS:
The subject merchandise are knives with blades that are made of zirconium oxide ceramic material. Protestant explains that the subject ceramic knifes are safe to be used with food. No other information regarding the knives has been supplied by Protestant, including how they are put up for retail sale.
The protested merchandise consist of one entry, which was entered under heading 6911, HTSUS, as porcelain tableware, at the Port of Pembina on August 17, 2015. On July 1, 2016, however, the entry was liquidated under subheading 6912.00.48, HTSUS. Protestant filed this Protest and AFR on July 7, 2016, asserting that the subject merchandise are properly classified 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."
ISSUE:
Whether the subject ceramic knives are classified in subheading 6912.00.39, HTSUS, as ceramic tableware available in specified sets; or in subheading 6912.00.48, HTSUS, as ceramic tableware suitable for food.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. 1514(a)(2), as a decision on classification. The Protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. 1514(c)(3) (2006)). Further review of Protest No. 3401-16-100029 is properly accorded, pursuant to 19 C.F.R. 174.24(b), because the decision against which the protest was filed is alleged to involve questions of law or fact that have not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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, the remaining GRIs 2 through 6 may then be applied in order.
* * * *
The 2015 HTSUS headings under consideration are as follows:
6912.00 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:
Tableware and kitchenware:
Other:
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
Other:
6912.00.48 Other
* * * *
Additional U.S. note 6 to chapter 69, HTSUS, provides, in pertinent part, as follows:
6. For the purposes of headings 6911 and 6912:
a) 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.
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 69.12 provides, in pertinent part, as follows:
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).
EN 39.24 provides, in pertinent part, as follows:
This heading covers the following articles of plastics:
A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of
all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, serviette rings, knives, forks and spoons.
* * * *
There is no dispute that the subject ceramic knives are properly classified in heading 6912, HTSUS, which provides for ceramic tableware. First, the subject merchandise are knives with blades that are made of zirconium oxide, which is a ceramic material. Second, although knives are not explicitly mentioned as tableware in EN 69.12, they are listed as examples of tableware in EN 39.24, which provides for plastic tableware. Accordingly, knives constitute tableware under the HTSUS. Therefore, the issue herein is at the 6-digit subheading level of the HTSUS.
In its Protest, Protestant claims that the subject ceramic knives should be classified under subheading 6912.00.39, HTSUS, as ceramic tableware available in specified sets. For purposes of classification under heading 6912, HTSUS, the additional U.S. note 6(a) to chapter 69, HTSUS, provides that ceramic tableware "available in specified sets" covers "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." The note specifies that the article must be of the same pattern as one of the articles listed in the additional U.S. note 6(b) to chapter 69, HTSUS. Knives, however, are not listed in the additional U.S. note 6(b) to chapter 69, HTSUS. Moreover, there is no evidence that the subject merchandise are sold or offered in specified sets. Hence, the subject ceramic knives are classified as stand-alone items and are precluded from classification in subheading 6912.00.39, HTSUS, as ceramic tableware available in specified sets.
Moreover, in New York Ruling Letter (NY) N279063, dated September 28, 2016, CBP classified substantially similar merchandise-a knife with a blade made of white zirconium oxide ceramic material and a handle made of plastic-under subheading 6912.00.4810, HTSUSA (Annotated), as ceramic tableware suitable for food. The subject ceramic knives, therefore, are properly classified under subheading 6912.00.48, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the ceramic knives are classified under heading 6912, HTSUS, specifically in subheading 6912.00.48, HTSUS, which provides for: "Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other." The 2015 column one, general rate of duty is 9.8% ad valorem.
You are instructed to DENY the protest. You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division