Modification of HQ H169055 and HQ H226264; classification of ceramic dinnerware

HQ H252124 July 18, 2016 CLA-2 OT:RR:CTF:TCM H252124 CKG CATEGORY: Classification TARIFF NO.: 6911.10.10; 6912.00.20 Edmund Maciorowski 101 West Long Lake Road Bloomfield Hills, Michigan 48304 Re: Modification of HQ H169055 and HQ H226264; classification of ceramic dinnerware Dear Mr. Maciorowski: This is in response to your letter of February 28, 2014, requesting the reconsideration of Headquarters Ruling Letters (HQ) H169055 and H226264, both dated January 3, 2014, filed on behalf of Marck & Assocaites, Inc., contesting Customs and Border Protection’s (CBP) classification of ceramic dinnerware in subheadings 6911.10.10, HTSUS, and 6912.00.20, HTSUS. Specifically, you contest the classification of all of the items pertaining to the Granada, Roma, Sydney, Valencia, Verona and York styles in heading 6911, HTSUS, as porcelain ceramic tableware, and you contest the classification of all items pertaining to the Brighton, Dover, Granada, Roma, Sydney, Valencia, Verona and York styles in subheadings 6911.10.10, HTSUS, and subheading 6912.00.20, HTSUS, as ceramic tableware for hotel or restaurant use. We have reconsidered both rulings, and for the reasons set forth below we are modifying HQ H169055 with respect to the classification of item number VE-9 (Verona plate), and H226264 with respect to the classification of item numbers RO-5 (Roma plate) and RO-12 (Roma platter). Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify HQ H169055 and HQ H226264 was published on June 1, 2016, in Volume 50, Number 22 of the Customs Bulletin. No comments were received in response to this notice.  FACTS: The subject merchandise consists of eight styles of ceramic dinnerware: Brighton, Dover, Granada, Roma, Sydney, Valencia, Verona, and York. Various samples of each style were sent to the 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 (Item #s BR-5, BR-6, BR-7, BR-8, BR-9, and BR-16), and one platter (BR-13). 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 on the back identifying them as “ITI, China, 5-1.” You acknowledge that the Brighton line of Marck’s merchandise is made of porcelain, and do not contest their classification at the 4-digit heading level in heading 6911, HTSUS. The Dover style items at issue here are: one saucer (DO-2), five bowls (DO-4, DO-10, DO-11, DO-24, and DO-120), five plates (DO-5, DO-7, DO-8, DO-16, DO-31), and a platter (DO-34). These items all contain a logo on the back identifying them as “ITI, China, 5-1.” 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. 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. You acknowledge that the Dover line of Marck’s merchandise is made of porcelain, and do not contest their classification at the heading level in heading 6911, HTSUS. The Granada style items at issue here are a plate (GR-9), a platter (GR-12), two saucers (GR-2, GR-2”C”) and a bowl (GR-11). They are glazed and beige with brown spots and have a dark brown trimming. 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, but that the Granada plate and the Grenada platter were not translucent. 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 determined that the plate was “composed of porcelain ceramic” and had a water absorption value of 0.08 percent by weight. The items from the Roma style at issue here are: a serving dish (WRO-8-AW), three plates (RO-3, RO-5, RO-8), three bowls (RO-10, RO-11, WRO-15), and a platter (RO-12). They are all plain and white. Following testing, the CBP laboratory determined that item WRO-8-AW was 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 item RO-8 was 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. The laboratory found that items RO-3 and RO-5 were not translucent and absorbed more than .5% of their weight in water, and thus conformed to the definition of stoneware put forth in Additional U.S. Note 5(a) to Chapter 69, HTSUS. One platter from the Sydney style is at issue here (SY-12). 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. One item of the Valencia style, a plate (VA-7), 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. Three items of the Verona style are at issue here: a fruit bowl (VE-11), a plate (VE-9), and a platter (VE-34). They are ivory-colored with green trim. Following testing, the CBP laboratory found that item VE-11 (fruit bowl) 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 bowl, and the laboratory confirmed its findings that it meets the definition of porcelain set forth in Note 5(a). The laboratory found that item VE-9 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 (VE-34) has an off-white body, is not translucent, and absorbs 0.14% if its weight in water. One item of the York Style, a grapefruit bowl (Y-10), is at issue here. It is a white bowl with shallow ridges around the rim. It is stamped on the back 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. Marck also sent samples of the Granada Bowl (item GR-11) and the Roma Oval Welsh Rarebit (item number WRO-8-AW), 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, 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. In HQ H169055, CBP classified the Dover Bowl (item number DO-120), the Dover Plate (item number DO-16), the Granada Bowl (GR-11), Granada Saucers (GR-2 and GR-2C), the Roma Plate (item number RO-8), the Sydney Platter (item number SY-12), the Verona Bowl (item number VE-11), and the Verona Plate (item number VE-9) in heading 6911, HTSUS, specifically 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 Roma Bowl (item number WRO-8-AW), the Granada Plate (item number GR-9), the Granada Platter (item number GR-12), the Verona Platter (item number VE-34), and the York Bowl (item number Y-10) were 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.” In HQ H226264, CBP classified five Brighton Plates (items BR-5, TBR-16, BR-6, BR-8, BR-9), the Dover Saucer (DO-2), four Dover Bowls (items DO-24, DO-11, DO-10, and DO-4), four Dover Plates (items DO-8, DO-31, DO-5, and DO-7), the Dover Platter (DO-34), The Brighton Platter (BR-13), a Brighton Plate (BR-7), two Roma Bowls (WRO-15 and RO-10), a Roma Plate (RO-5), and a Valencia Plate (VA-7) in heading 6911, HTSUS, specifically 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.” A Roma Plate, Bowl and Platter (items RO-3, RO-11, and RO-12) were classified in heading 6912, HTSUS, specifically 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.” ISSUE: Whether the subject merchandise is classified in heading 6911, HTSUS, as porcelain tableware, or under heading 6912, HTSUS, as other ceramic tableware. Whether the subject merchandise is classified in subheadings 6911.10.10, HTSUS, and 6912.00.20, HTSUS, as hotel or restaurant ware, and not as household ware. 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 as follows: 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: 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. In the Internal Advice Rulings at issue, CBP classified the following styles in heading 6911, HTSUS, as porcelain tableware: BR-5, BR-6, BR-7, BR-8, BR-9, BR-13, BR-16, DO-2, DO-4, DO-5, DO-7, DO-8, DO-10, DO-11, DO-16, DO-24, DO-31, DO-34, DO-120, GR-2, GR-2C, GR-11, RO-5, RO-8, RO-10, WRO-15, SY-12, VA-7, VE-9, and VE-11. The following styles were classified in heading 6912, HTSUS, as non-porcelain tableware: RO-3, RO-11, RO-12, WRO-8-AW, GR-9, GR-12, VE-34, and Y-10. The CBP Laboratory found that all of the Brighton and Dover styles at issue as well as styles GR-2, GR-2C, GR-11, RO-8, RO-10, RO-12, WRO-15, SY-12, VA-7, and VE-11, met the definition of porcelain as set out in Additional U.S. Note 5(a) to Chapter 69. Styles GR-12, RO-3, RO-5, WRO-8-AW, RO-11, VE-9, VE-34, and Y-10 were found by the CBP Laboratory to lack one or more of the criteria for porcelain required in Additional U.S. Note 5(a) to Chapter 69. Style GR-9 was tested by two different laboratories; the CBP NY lab found that the Granada plate was not porcelain because it was not translucent, and the CBP Chicago lab concluded that the plate was “composed of porcelain ceramic” and had a water absorption value of 0.08 percent by weight. As these reports differ in their conclusions regarding whether the Granada plate was porcelain or not, in HQ H169055, CBP set aside the findings of the Chicago lab and found in favor of the importer—i.e., that the plate was not made of porcelain and therefore not classified in heading 6911, HTSUS. You claim that styles GR-2, GR-2C, GR-11, RO-8, RO-10, RO-12, WRO-15, SY-12, VA-7, and VE-11 are not porcelain and that the CBP Laboratory results were in error. Our position on applying the results of CBP Laboratory tests on the exact merchandise at issue in a classification dispute is made clear in HQ H226264, HQ H169055, and numerous other cases. 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. Furthermore, in HQ 955711, dated July 21, 1994, CBP held that “where there is a conflict between results obtained by a Customs laboratory and those obtained by private or independent laboratories, Customs will, in the absence of evidence that the testing procedure or methodology used by the Customs laboratory was flawed, accept the Customs laboratory report.” See e.g., HQ H233587, dated March 30, 2014, and HQ 955711. See also HQ 953769, dated July 22, 1993. You allege the following errors in the methodology of the CBP Laboratory: First, you contend that, the CBP Laboratory erred in testing less than five samples of each style for water absorption/porosity, contrary to the requirements of ASTM C373. However, we first note that what ASTM C373 actually requires is that 5 specimens of 3” by 3” be tested. The CBP Laboratory of New York, for each style, tested five pieces taken from the samples provided by Marck (“five broken pieces were ground on one surface, dried at 148° C, cooled, weighed, boiled in distilled water for five hours, and soaked”). Second, you claim that the CBP Laboratory did not report the average water absorption value of five samples, as required by ASTM C373 (as opposed to simply taking the value of a single sample). While we acknowledge that it is not made clear in the Laboratory Reports, we have confirmed that the water absorption/porosity value reported by the CBP Laboratory in each Laboratory Report was in fact the average absorption value of all five pieces of each sample, as required by ASTM C373. Thus, the CBP Laboratory followed the correct procedure pursuant to ASTM C373 with regard to the number of pieces tested and the reported value of water absorption. You further argue that outdated ASTM methods were used to determine porosity and color: specifically, you contend that the CBP Lab should have used the more recent ASTM C373-88 instea