Application for Further Review of Protest No 1704-15-100468; Classification of Stoneware Salad Plates and Salad Bowls

HQ H269634 April 19, 2018 CLA-2-OT:RR:CTF:CPMMA HQ H269634 MAB CATEGORY: Classification TARIFF NO.: 6912.00.4500/4810 Center Director Consumer Products & Mass Merchandising – CEE U.S. Customs and Border Protection Savannah, GA ATTN: William S. Huntley, Supervisory Import Specialist RE: Application for Further Review of Protest No: 1704-15-100468; Classification of Stoneware Salad Plates and Salad Bowls Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 1704-15-100468, timely filed on April 8, 2015, on behalf of Target General Merchandise Inc. (“Target”). The AFR concerns the classification of stoneware salad plates and salad bowls under the Harmonized Tariff Schedule of the United States (HTSUS). We also examined samples of the subject merchandise that Target submitted upon our request. FACTS: The merchandise is described as stoneware salad plates (item #200 11 0183; style #TR14-33) and stoneware salad bowls (item #200 11 0193; style #TR14-18) that come in two (2) styles – one decorated with a pattern of radish images and the other with tomato images. The stoneware salad plates measure 8-5/8 inches (22 cm) in diameter and have a unit cost of $2.18 per plate, or $26.16 per dozen. The stoneware salad bowls measure 6 inches (15 cm) in diameter and 2-1/2 inches (6-1/2 cm) in height and have a unit cost of $1.85, or $22.20 per dozen. The instant plates and bowls appear to have been sold or offered for sale separately and not in sets. The protest at issue involves two (2) entries of stoneware salad plates and stoneware salad bowls entered between November 27, 2013, and December 19, 2013 under subheading 6912.00.4810, HTSUS, as “Ceramic tableware…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 October 10, 2014, and October 31, 2014. The importer filed its protest on April 8, 2014, claiming that the correct classification for the instant plates and bowls is under subheading 6912.00.4500, HTSUS. ISSUE: Whether stoneware salad plates and stoneware salad bowls are “plates not over 22.9 cm in maximum diameter and valued over $6 per dozen” and “soups, oatmeals and cereals valued over $6 per dozen” of subheading 6912.00.4500, HTSUS, or “Other…Suitable for food or drink contact” of subheading 6912.00.4810, HTSUS? 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. 1704-15-100468 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 the specific characteristics of the instant products 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: Other: 6912.00.4500 …soups, oatmeals and cereals valued over $6 per dozen; plates not over 22.9 cm in maximum diameter and valued over $6 per dozen… 6912.00.48 Other: 6912.00.4810 Suitable for food or drink contact 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. Since the instant merchandise is of stoneware, there is no dispute that both the salad plates and salad bowls are classified in heading 6912, HTSUS. Rather, the issue is what 8-digit national tariff rates are applicable. As a result, GRI 6 applies. As provided in Target’s invoicing, the instant stoneware plates are described as “salad plates,” measure 8-5/8 inches (22 cm) in diameter, and have a unit cost of $2.18 per plate or $26.16 per dozen. We therefore find that the instant stoneware salad plates meet all of the requirements of description, size, and value for the purposes of subheading 6912.00.4500, HTSUSA (Annotated). See New York Ruling N246929, dated November 1, 2013 (classifying two styles of stoneware dessert plates measuring 7 inches in diameter and valued greater than $6.00 per dozen in subheading 6912.00.45, HTSUS); NY R03766, dated May 12, 2006 (classifying ceramic salad/dessert plates measuring 8 inches in diameter and valued greater than $6.00 per dozen in subheading 6912.00.45, HTSUS). As provided in Target’s invoicing, the instant stoneware bowls are described as “salad bowls” with a unit cost of $1.85, or $22.20 per dozen. Although they meet the value requirement in subheading 6912.00.45, HTSUS, the only bowls referenced in this subheading are “soups, oatmeals and cereals.” Therefore, the instant stoneware salad bowls are classified in subheading 6912.00.4810, HTSUSA, 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.” See NY H83892, dated August 21, 2001 (classifying earthenware bowl measuring 3 inches in height by 6 inches in diameter in subheading 6912.00.4810, HTSUS); N227576, dated August 15, 2012 (classifying stoneware ceramic bowl measuring 5.75 inches long by 5.7 inches wide by 3.25 inches high in subheading 6912.00.4810, HTSUS); and N038650, dated September 19, 2008 (classifying ceramic bowls, one measuring 6 inches by 4 inches and another measuring 5.5 inches by 3.5 inches in subheading 6912.00.4810, stoneware, HTSUS). HOLDING: By application of GRIs 1 and 6, the instant stoneware salad plates are classified in heading 6912, HTSUS, specifically under subheading 6912.00.4500, HTSUSA, which provides for: “Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Other…plates not over 22.9 cm in maximum diameter and valued over $6 per dozen…” Also by application of GRIs 1 and 6, the instant stoneware salad bowls are classified in heading 6912, HTSUS, specifically under subheading 6912.00.4810, HTSUSA, 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 2013 general column one rate of duty at the time of entry for the stoneware salad plates was 4.5% ad valorem. The 2013 general column one rate of duty at the time of entry for the stoneware salad bowls was 9.8% ad valorem. You are hereby instructed to GRANT the protest in regard to the stoneware salad plates and DENY the protest in regard to the stoneware salad bowls. 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. Ceramic table/kitchenware may be subject to certain requirements under the regulations administered by the Food and Drug Administration (FDA). If you have any questions regarding these requirements, you may contact the FDA at: Food and Drug Administration, Division of Import Operations and Policy, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone: 1-888-463-6332. Certain ceramic table and kitchen articles may be subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the FDA. Information on the Bioterrorism Act can be obtained by calling the FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. 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 internet 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