Internal Advice Request; classification of dinnerware

HQ H169055 January 3, 2014 CLA-2 OT:RR:CTF:TCM HQ H169055 TNA CATEGORY: Classification TARIFF NO.: 6911.10.10; 6912.00.20 Port Director, Detroit Metropolitan Airport U.S. Customs and Border Protection Edward H. McNamara Terminal2596 World Gateway PlaceDetroit, MI 48242 Attn: Beverly Quentin, Import Specialist RE: Internal Advice Request; classification of dinnerware Dear Port Director: This is in response to your request for internal advice, dated May 20, 2011, 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 conferences 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. We regret the delay in responding. FACTS: The subject merchandise consists of six styles of tableware: Granada, Verona, Sydney, York, Dover and Roma. CBP’s National Commodity Specialist Division (“NCSD”) sent a sample of each style of the subject merchandise to a U.S. Customs and Border Protection (“CBP”) laboratory for testing. Separate laboratory reports were issued for each item. In addition, a second set of samples was sent to the laboratory for analysis following CBP’s November 15, 2012 meeting with Marck’s counsel. This second set consisted of a sample from the Verona style and a sample from the Granada style. The Dover style items at issue here are a bowl and a plate. They are both plain, white, and round. After testing, CBP’s laboratory found these items to be translucent with an elemental composition of a clay based product that absorbs less than 0.5% of its weight in water. The laboratory concluded that these items conform to the definition of porcelain found in Additional U.S. Note 5(a) to Chapter 69, HTSUS. The Granada style items at issue here are a plate, a platter, two saucers and a bowl. They are glazed and beige with brown spots and have a dark brown trimming. Following testing, the CBP laboratory found that the Granada plate was white, and that the rest these items are off-white or beige, not translucent in a thickness of several millimeters, and absorb less than 0.5% of their weight in water. The laboratory concluded that the Granada bowl and two saucers met the definition of porcelain within the meaning of Note 5(a) to Chapter 69, HTSUS. In addition to the laboratory reports issued by CBP’s New York laboratory, the Port sent a sample of the Granada plate to CBP’s laboratory in Chicago for analysis. The resulting laboratory report, Report Number CH20100869, dated September 28, 2010, determined that the plate was of porcelain ceramic and had a water absorption value of 0.08 percent by weight. Furthermore, the laboratory determined that the article met the requirements of a ceramic article detailed in Additional U.S. Note 5(a) to Chapter 69, HTSUS. Two items from the Roma style are at issue here: a serving dish and a plate. They are both plain and white. Following testing, the CBP laboratory determined that the serving plate is not translucent and absorbs 4.1% percent of its weight in water. The laboratory concluded that it meets the definition of earthenware of Additional U.S. Note 5(c) to Chapter 69, HTSUS. The laboratory found that the plate is translucent in several millimeters, and absorbs approximately 0.46% of its weight in water. The laboratory concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS. One platter from the Sydney style is at issue here. It is a plain white platter with shallow scalloped edges. The rim is edged in black. Following testing, the laboratory found that this platter is a glazed clay ceramic that has a white body and is translucent in a thickness of several millimeters. It absorbs 0.20% of its weight in water. The laboratory concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS. Three items of the Verona style are at issue here: a fruit bowl, a plate, and a platter. They are ivory-colored with green trim. The bottom of the plate is inscribed with the “ITI” logo on it; “ITI” stands for “International Tableware Incorporated.” Following testing, the CBP laboratory found that it absorbed 0.04% of its weight in water and concluded that it meets the definition of porcelain of Additional U.S. Note 5(a) to Chapter 69, HTSUS. The CBP laboratory retested the fruit bowl, and the laboratory confirmed its findings that it meets Note 5(a)’s definition of porcelain. The laboratory found that the Verona plate has a white body, is a glazed clay ceramic, is translucent and absorbs approximately 0.55% of its weight in water. The laboratory found that the platter has an off-white body, is not translucent, and absorbs 0.14% if its weight in water. The laboratory noted that it does not contain phosphorus, and is therefore not bone china. Furthermore, the elemental analysis conducted by the laboratory indicates that it is consistent with clay material. One item of the York Style, a grapefruit bowl, is at issue here. It is a white bowl with shallow ridges around the rim. It is stamped with the phrase “ITI China 7-1.” Following testing, the laboratory found that it is not translucent and that it absorbs 0.29% of its weight in water. Its elemental composition is consistent with a clay-based product. Following the November 15, 2012 meeting with CBP, Marck sent samples of its merchandise to an independent expert for testing. The resulting report, issued on April 30, 2013 by William D. Carty, Ph.D., of Ceramic Engineering & Materials Consulting and Testing Services, tested the Granada Fruit Bowl (Product Number GR-11) and the Roma Oval Welsh Rarebit, (item number WRO-8-AW). This report concluded that the GR-11 had a thickness of 3.94 millimeters, an average light transmission of 0.4%, and was opaque, not translucent, and not porcelain. This report concluded that the WRO-8-AW had a thickness of 4.00 millimeters, an average light transmission of 0.4%, was opaque, not translucent, and not porcelain. Marck has been entering the merchandise of the Granada, Verona, Sydney, York, and Roma 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.” The items of the Dover style have been entered 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: 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… The subject merchandise has undergone laboratory testing on numerous occasions to determine whether it is porcelain of heading 6911, HTSUS, or ceramic of heading 6912, HTSUS. Not only were certain items of the subject merchandise tested twice by CBP laboratories, Marck also submitted samples to an independent laboratory. This independent laboratory’s result conflicted with those of the CBP laboratory, and Marck asserts that CBP should accept the findings of the independent laboratory over the results of the CBP laboratory. In response, we note that pursuant to 28 U.S.C. § 2639 (a) (1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); American Sporting Goods v. United States, 27 C.I.T. 450; 259 F. Supp. 2d 1302; 25 Int’l Trade Rep. (BNA) 1345; 2003 Ct. Intl. Trade LEXIS 45. Furthermore, it is “well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973) (“Alcoa”). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the Customs’ laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399; American Sporting Goods, 27 C.I.T. 450. In the present case, Marck has neither argued that CBP’s laboratory used incorrect testing methods, nor presented evidence that would call these methods into question. Simply presenting one set of laboratory results that is inconsistent with CBP’s conclusions is not enough to rebut CBP’s presumption of correctness. Furthermore, we note that the independent laboratory simply notes that the merchandise is opaque rather than translucent and concludes that the merchandise is not porcelain. The findings do not address the merchandise’s water absorption or color, the other two factors that Note 5(a) to Chapter 69, HTSUS, requires for porcelain. As a result, we find the results of the independent laboratory to be inconclusive, and we adhere to CBP’s laboratory results. This is consistent with prior CBP rulings. See HQ 965177, dated August 29, 2002; HQ 957282, dated March 28, 1995; HQ 958346, dated February 6, 1996; HQ 963748, dated November 20, 2000. Hence, both items in the Dover style, the Granada Fruit Bowl (GR-11), Granada Saucers (GR-2 and GR-2C), the Roma Plate (item number RO-8), the Sydney Platter (item number SY-12), and the Verona Bowl (item number VE-11) are made of porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS, and 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.” With respect to the Roma Bowl (item number WRO-8-AW), the CBP laboratory concluded that it 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.” With respect to the remaining items of the subject merchandise, the CBP laboratory did not make a specific finding as to whether these items were porcelain within the meaning of Additional U.S. Note 5(a) to Chapter 69, HTSUS, because these items did not meet all three factors as required by the Note. Nonetheless, the laboratory made a finding with respect to each of the factors that determine 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 Granada Plate, item number GR-9, Laboratory Report #NY 201201310 concluded that it absorbs 0.45 percent of its weight in water, is white but not translucent in a thickness of several millimeters, and contains an elemental composition consistent with a clay-based product. Thus, the Granada Plate contains only two of the three elements necessary to be porcelain. Furthermore, it is a clay-based product, which is an essential element of a stoneware product as defined in Note 5(a); under the terms of the Note, stoneware excludes porcelain. As a result, we find that item number GR-9 is precluded from being classified as a porcelain product of heading 6911, HTSUS. It is therefore classified in heading 6912, HTSUS, as “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china.” With respect to the Granada Platter, item number GR-12, Laboratory Report #NY 20120313, concluded that it is off-white, is not translucent, and absorbs 0.39% of its weight in water. Furthermore, the laboratory concluded that its elemental analysis is consistent with clay material. Thus, the Granada Platter lacks two of the three characteristics of porcelain, and has an essential element of stoneware. As a result, item number GR-12 is precluded from being classified as porcelain of heading 6911, HTSUS, and is instead described by the terms of heading 6912, HTSUS. With respect to the Verona Plate, item number VE-9, Laboratory Report #NY20120306 found that it has a white body, is translucent and absorbs approximately 0.55% of its weight in water. Thus, the Verona Plate meets two of the three criteria to be considered porcelain but does not meet the third requirement. As a result, we find that the Verona Plate is described by the terms of heading 6912, HTSUS. With respect to the Verona Platter, item number VE-34, Laboratory Report #NY20120312, found that the Verona Platter has an off-white body, is not translucent, and absorbs 0.14% if its weight in water. The laboratory noted that it does not contain phosphorus, and is therefore not bone china. Furthermore, the laboratory concluded that the Verona Platter has an essential element of clay. Thus, the Verona Platter lacks two of the three characteristics of porcelain and has an essential characteristic of stoneware. As such, it is described by the terms of heading 6912, HTSUS. With respect to the York Bowl, item number Y-10, Laboratory Report #NY 20120316, found that it is white but not translucent. Furthermore, the laboratory found that it absorbs 0.29% of its weight in water, and that its elemental composition is consistent with a clay-based product. Thus, the York Bowl lacks one of the criteria of porcelain set out in Note 5(a), and it is a clay-based product. As such, it is precluded from being classified as porcelain of heading 6911, HTSUS; instead, it is described by the terms of heading 6912, HTSUS. 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 prov