CLA-2- OT:RR:CTF:TCM H071437 TNA
Port Director, Chicago Service Port
U.S. Customs and Border Protection
9915 Bryn Mawr Rosemont, IL 60018
RE: Application for Further Review of Protest No: 3901-09-10075; Ceramic Table/ Kitchenware
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3901-09-10075, timely filed on February 18, 2009, on behalf of World Kitchen, LLC (“World Kitchen”). The AFR concerns the classification of ceramic table/kitchenware under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise is described as the French White line, which consists of a variety of household dinnerware, serveware and bakeware products with the same fluted design pattern. The set, which has an aggregate value exceeding $38, includes the following: 12 plates of the size nearest to 26.7 cm max; 12 plates of the size nearest to 15.3 cm max; 12 mugs; 12 soup bowls of the size nearest to 17.8 cm max; 12 cereal bowls of the size nearest to 15.3 cm max; 1 platter or chop dish nearest to 38.1 cm; 1 open vegetable dish/bowl nearest to 25.4 cm; 1 sugar of largest capacity; and 1 creamer of largest capacity. All of these pieces are either sold or offered for sale.
The protest at issue involves 5 entries of dinnerware entered between October 5, 2008 and November 4, 2008 under subheading 6912.00.4810, HTSUS, as “ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: tableware and kitchenware: other: other: other: other: suitable for food or drink contact.” The merchandise was liquidated as entered between December 5, 2008 and January 2, 2009. The importer filed its protest on February 18, 2009, claiming that the correct classification for the dinnerware is under subheading 6912.00.3950, HTSUS.
ISSUE:
Whether mugs may be substituted for teacups and saucers and still be classified as a specific set under heading 6912, HTSUS, within the meaning of additional U.S. note 6(b) to Chapter 69?
LAW AND ANALYSIS:
Initially, we note that the matter protested 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. (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. 5501-08-100197 is properly accorded to Protestant 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 which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant states that the question of whether mugs can be substituted for teacups and saucers under Additional U.S. Rule 6(b) to Chapter 69 is an issue of first impression.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate 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 GRIs 1 through 5.
The HTSUS headings under consideration are the following:
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:
6912.00.35 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
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
6912.00.39.50 Other
Other:
Other:
Other:
6912.00.48 Other:
6912.00.48.10 Suitable for food or drink contact
U.S. Note 6(a) of Chapter 69 states, in pertinent part, the following:
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.
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.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 6912, HTSUS, states, in pertinent part, the following:
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.
The headings therefore include:
(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, spoons and serviette rings.
There is no dispute that the instant merchandise is classified in heading 6912, HTSUS. Rather, the dispute is the proper 8-digit national tariff rate that is applicable. As a result, GRI 6 applies.
GRI 6 states: For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
U.S. Note 6(a) of Chapter 69 defines what constitutes a set for purposes of subheading 6912.00.39, HTSUS. Among the list of items that must be included are teacups and saucers. Note 6(a) only allows one type of substitution of merchandise: “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.”
In the present case, the proposed substitution is not of cereal bowls for soup or fruit bowls, but rather of mugs for teacups and saucers. This is not a substitution that Note 6(a) permits. As a result, we find that World Kitchen’s French White dinnerware does not constitute a set for the purposes of subheading 6912.00.39, HTSUS.
World Kitchen cites to NY G88881, dated April 13, 2001, HQ 964653, dated April 12, 2002, and NY H80584, dated May 17, 2001, in support of its position that the substitution should be allowed. Upon reviewing these opinions, however, we find that the legal issues therein can be distinguished from the issue being considered here. In G88881, the mugs were not being substituted for teacups and saucers; rather, the issue there was whether the mugs contained the same pattern as the rest of the subject merchandise. At issue in HQ 964653 was the value of the merchandise. NY H80584 addressed the issue of the evidence needed to support the claim that a set could be classified in subheading 6912.00.3510. None of these rulings directly addresses the present issue. Therefore, the merchandise is classified in subheading 6912.00.4810, as “ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: tableware and kitchenware: other: other: other: other: suitable for food or drink contact.”
HOLDING:
By application of GRI 6, World Kitchen’s French White dinnerware is classified in heading 6912, HTSUS, specifically under subheading 6912.00.48.10, 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: suitable for food or drink contact.” The general column one rate of duty at the time of entry was 9.8% ad valorem. You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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 methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division