CLA-2 RR:CR:GC 967535 AML
Ms. Tabitha Stewart
American Airlines
4333 Amon Carter Blvd.
Mail Drop 5223
Ft. Worth, Texas 76155
RE: Porcelain table-/kitchenware not for household use; New York Ruling
Letters (“NY”) K88482, K88488 and K88494 revoked
Dear Ms. Stewart:
This is in regard to New York Ruling Letters (“NY”) K88482, K88488 and K88494, all dated August 30, 2004, which were issued to you concerning the tariff classification of porcelain table/kitchenware for commercial use under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). The referenced rulings classified the articles under subheadings 6911.10.45, 6911.10.52 and 6911.10.80, HTSUS, which provide for various types of porcelain table-/kitchenware for household use. We revisited the classification decisions made in NYs K88482, K88488 and K88494 and determined that they are incorrect. This letter sets forth the proper classification of the porcelain table-/kitchenware for commercial use.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)), notice of the proposed revocations was published on May 25, 2005, in Vol. 39, No. 22 of the Customs Bulletin. No comments were received in response to the notice.
FACTS:
We described the articles in NY K88482 as follows:
The products include various table/kitchen articles – Style numbers 73-PL-88, 73PL069, 73DI092, 73D1087 and 73RA38 made of porcelain and are not imported packed together for retail sale as a set.
We described the articles in NY K88488 as follows:
The products include various table/kitchen articles – Style numbers 73-PL-87, 73PL083, 73PL068, 73-PL-86 and Kingway, made of porcelain and are not imported packed together for retail sale as a set. We noted that the Kingway product is a mug and that Style 73-PL-86 is a plate not over 22.9 cm in maximum diameter, valued over $8.50 per dozen but not over $31 per dozen.
We described the articles in NY K88494 as follows:
The products include various plates, dishes and bowls – Style numbers 73-PL-92, 73DI102, 73BO121, 73BO128 and 73BO111 made of porcelain and not imported packed together for retail sale as a set.
The merchandise is sourced by Wessco, a California concern that (according to its website) specializes in providing such goods to major airlines. The subject table/kitchenware is used for meal service in the front (first class) cabin of aircraft. The name of the airline and the model number for each piece appears on the bottom of the articles.
ISSUE:
What is the proper tariff classification of the porcelain table-/kitchenware for commercial use?
LAW AND ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Classification under the HTSUSA is guided by the General Rules of Interpretation of the Harmonized System (“GRIs”). GRI 1, HTSUSA, states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]”
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:
Other:
* * *
6911.10.45 Mugs and other steins
* * *
6911.10.52 Cups valued over $8 but not over $29 per dozen; saucers valued over $5.25 but not over $18.75 per dozen; soups, oatmeals and cereals valued over $9.30 but not over $33 per dozen; plates not over 22.9 cm in maximum diameter and valued over $8.50 but not over $31 per dozen; plates over 22.9 but not over 27.9 cm in maximum diameter and valued over $11.50
but not over $41 per dozen; platters or chop dishes valued over $40 but not over $143 per dozen; sugars valued over $23 but not over $85 per dozen; creamers valued over $20 but not over $75 per dozen; and beverage servers
valued over $50 but not over $180 per dozen
* * *
6911.10.80 Other.
United States Customs and Border Protection (“CBP”) has previously determined the distinction between porcelain table-/kitchenware for household use and those (in the parlance of the tariff) ”not for household” (commercial) use.
The distinction was initially made in Headquarters Ruling Letter (“HQ”) 082780, dated December 18, 1989, which, under the auspices of the Tariff Schedules of the United States (“TSUS”), differentiated, based upon “chief use” (the TSUS predecessor to “principal use” in the HTSUS; see below), between hotel ware and household ware, i.e., porcelain dishes for private use in or commercially outside of the household. After discussing the nature and use of the articles, CBP concluded that:
In the case where restaurants and hotels special order household china in modified patterns more suitable for commercial uses, as described in situation (2) above such modification alone will not provide the imports with a utility different from the class. However, when such modifications include the hotel or restaurant logo or name, it is obvious that such china is in a class chiefly for hotel purposes.
Thus, household china which has been special ordered and modified for hotel and restaurant use by incorporating the hotel/restaurant logo or name in the design, is no longer in the class of china for household use, but belongs to the class of china that is chiefly used for hotels and restaurants. HQ 082780 at page 5.
CBP reached a similar conclusion in HQ 959745, dated July 20, 1998. At issue was the classification of ceramic dinnerware for use in the rental and private catering industries. The merchandise was imported from a supplier that sold “tableware designed exclusively for institutional use and sold expressly and exclusively to institutional buyers such as restaurants, hotels, airlines, nursing homes and hospitals.” CBP referred to HQ 082870 with approval, noting that:
On a case-by-case basis, decisions under the Tariff Schedules of the United States (TSUS) - the HTSUS predecessor tariff - are deemed instructive in interpreting HTSUS provisions, provided the nomenclature remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. See H. Rep. No. 100-576, 100th Cong., 2d Sess. 548, 550 (1988), a conference report to the Omnibus Trade & Competitiveness Act
of 1988, Pub. L. No. 100-418. The nomenclature of the TSUS and the HTSUS are identical. Both provisions distinguish between "hotel or restaurant ware and other ware not household ware" and "household" ware. As the language of the two nomenclatures is identical, and the issue is essentially the same, we must consider HQ 082780, dated December 18, 1989, which was based on the TSUS. The only difference between the TSUS and the HTSUS in heading 6911 is the standard of use. "Principal use" replaced the prior standard of "chief use."
The principal use criteria of the HTSUS are set forth in Additional U.S. Rule of Interpretation 1(a), which provides that:
In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
After applying the principal use criteria set forth in Additional U.S. Rule of Interpretation 1(a) to the HTSUS and the Carborundum factors (see generally U.S. v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1977)(they include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use), CBP concluded that the chinaware in question was of the class or kind principally used for other than household use, classifiable under subheading 6911.10.10, HTSUS. In discussing the determination made in HQ 082780 above, CBP noted that:
It is the use of the chinaware and not the physical composition that is critical for classification purposes. For example, in HQ 082780, Customs held that if a plate was emblazoned with a logo or crest of the hotel or restaurant, it was found to be hotel ware regardless of the fact that without the logo, crest or symbol the chinaware would be classified as household chinaware. HQ 959745 at page 6.
We are cognizant of the distinction between hotels, restaurants and commercial aircraft; however, we consider the meal service provided in first and business class of the major airlines to be similar to that received in a hotel or restaurant. Distinctive porcelain table- or kitchenware is used to serve meals and create ambiance or a sense of luxury. Thus, we find porcelain table- and kitchen ware intended for exclusive use on commercial airlines to be ejusdem generis with the articles classified as porcelain table- or kitchenware not for household use under subheading 6911.10.10, HTSUS. The Court of International Trade (“CIT”) has stated that the canon of construction ejusdem generis, which means literally, of the same class or kind, teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). The CIT further stated that “[a]s applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157. The porcelain dishes for use on aircraft, manufactured with the name and model numbers for a specific airline, are substantially similar to those used in restaurants or hotels. The information presented establishes that the articles are not intended for household use but rather are intended for exclusive use in front cabin food service on a commercial airline.
HOLDING:
The porcelain table-/kitchenware for use on commercial aircraft are classified under subheading 6911.10.1000, HTSUSA, 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 general, column one rate of duty is 25% percent ad valorem per dozen pieces.
EFFECT ON OTHER RULINGS:
NYs K88482, K88488 and K88494 are revoked. In accordance with 19 U.S.C. §1625 (c)(2), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division
cc: National Commodity Specialist Division
NIS Bunin