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HQ H004625




August 6, 2007

CLA-2 OT:RR:CTF:TCM H004625 KSH

TARIFF NO.: 6912.00.39

Himark Enterprises, Inc.
155 Commerce Drive
Hauppauge, NY 11787

RE: Revocation of Headquarters Ruling Letter (HQ) 955838, dated August 8, 1994; Classification of Ceramic tableware; Additional U.S. Note 6 (a) and (b), Chapter 69.

Dear Sir or Madam:

This is in reference to Headquarters Ruling Letter (HQ) 955838 issued to the Regional Commissioner of Customs, New York, NY, on August 8, 1994, with regard to protest 1001-93-105468 concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUSA), of ceramic tableware. The articles were classified in subheading 6912.00.48, HTSUS, as other ceramic tableware and kitchenware. Since the issuance of that ruling, the Bureau of Customs and Border Protection (CBP) has reviewed the classification of this item and has determined that the cited ruling is in error.

HQ 955838 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs and Border Protection (CBP) Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 955838 when notice of denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).

However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. 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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This revocation will not affect the entries which were the subject of Protest 1001-93-105468, but will be applicable to any unliquidated entries, or future importations of similar merchandise 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN, unless an earlier date is requested pursuant to 19 CFR 177.12(e)(2)(ii).

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 of the proposed action was published on May 30, 2007, in Volume 41, Number 23, of the CUSTOMS BULLETIN. CBP received one comment in support of the proposed revocation.

FACTS:

The articles in question are ceramic rice platters, salad bowls, and 5 piece pasta sets. All three articles were imported in the "Caffe Italia" pattern. A sample of a 20.3 cm plate was provided. Additionally, some of the salad bowls were imported in a "Morning Mist" pattern and some rice platters were imported in a "San Remo" pattern.

You provided a manufacturer's price list that indicates that each pattern is available in a 77 piece set valued over $38. The price lists indicate that all three patterns contain the following:

12 26.42 cm dinner plates
12 21.34 cm soup plates
12 20.32 cm fruit plates
12 12.7 cm bread plates
12 teacups with saucers
1 39.88 cm x 61.31 cm oval plate
1 21.59 cm salad bowl
1 sugar with cover
1 creamer

ISSUE:

Whether the tableware meets the "available in specified sets" requirements of U.S. Note 6(b) to chapter 69, HTSUS.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Additional U.S. Note 6 to Chapter 69, HTSUS, reads:

6. For the purposes of headings 6911 and 6912:

(a) 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.

(b) 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.

Additional U.S. Note 6 to Chapter 69, HTSUS, was adopted from the former Tariff Schedules of the United States (TSUS). Schedule 5 of the TSUS (1987) contained the following headnote:

2. (a) For the purposes of this subpart, the term “available in specified sets” (items 533.22, 533.24, 533.62 and 533.64) embraces plates, cups, saucers and other articles chiefly 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 headnote are sold or offered for sale.

(b) If each of the following articles is sold or offered for sale in the same pattern, the classification hereunder in items 533.22, 533.24, 533.62 or 533.64, 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 10.5 inches in maximum dimension, sold or offered for sale,

12 plates of the size nearest to 6 inches 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 7 inches in maximum dimension, sold or offered for sale,

12 fruits of the size nearest to 5 inches in maximum dimension, sold or offered for sale,

1 platter or chop dish of the size nearest to 15 inches in maximum dimension, sold or offered for sale,

1 open vegetable dish or bowl of the size nearest to 10 inches 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 6 inches in maximum dimension, sold or offered for sale, shall be substituted therefor.

Tariff Classification Study, Seventh Supplemental Report (Aug 14, 1963), Appendix C titled “Additional Explanatory Notes and Background Materials” explained the meaning of the term “maximum dimension” as it appeared in the TSUS. It stated in relevant part:

The term “of the size nearest to” in headnote 2(b) of this subpart means either more or less than the dimension specified, and within a rather wide range. For example, as indicated in the original explanatory notes on page 84, “the size nearest to 6 inches in maximum dimension” may actually be a salad plate of more than 8-inch diameter. The size nearest to 10-1/2 inches in maximum dimension is intended to designate a dinner plate, however, and even though any plate over 8-1/4 inches in diameter would be nearer to 10-1/2 inches than to 6 inches in diameter, it could hardly be considered to be a dinner plate unless it were over 9 inches in maximum dimension. The term “maximum dimension” means the maximum straight-line distance from edge to edge across the face or top of the article whose dimension is specified.

Unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. See, e.g., Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (1982); Schott Optical Glass, Inc. v. United States, 612 F.2d 1283, 1285 (1979). The common meaning of a tariff term presents a question of law to be decided by the court. American Express Co. v. United States, 10, C.A.D. 456 (1951). In cases where a term is defined by statute, the court need not undertake a common-meaning inquiry, for the statutory definition is controlling. Overton & Co. v. United States, 85 Cust. Ct. 76, 80-81 (1980). Absent an express definition, however, dictionaries, lexicons, scientific authorities, and other such reliable sources may be consulted to determine common meaning. C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (1982).

“The common meaning of a tariff term, once established, remains controlling until a subsequent change in statute compels a revised construction of the term's meaning.” United States v. Great Pacific Co., 324, T.D. 48192 (1936); see Sears, Roebuck & Co. v. United States, 83, C.A.D. 701(1959). Absent clear evidence of legislative intent to embrace an alternative statutory definition, and in light of its historical pedigree, the TSUS definition of the term "maximum dimension" survives as the common and commercial meaning of the term under the HTSUS. Lonza, Inc. v. United States, 46 F.3d 1098 (Fed. Cir. 1995).

Where the text of a tariff provision has undergone only minor changes from the TSUS to the HTSUS, the high values of uniformity and predictability -- not to mention the merits of honoring Congress' decision to retain prior policy -- counsel courts to credit prior decisions interpreting the TSUS provision. See, e.g., Pima Western, Inc. v. United States, 915 F. Supp. 399, 404-05 (Ct. Int'l Trade 1996) ("'[O]n a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US].'") (quoting the Conference Report on the Omnibus Trade Act of 1988, H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 515, 549-50 (1988)). Hewlett-Packard Co. v. United States, 189 F.3d 1346 at 1349 (Fed. Cir. 1999).

In HQ 955838, we determined that the tableware at issue:
do not meet the necessary size requirements to be considered “available in specified sets”. As the measurements in the note above indicate, a "cereal" can not exceed 15.3 cm. Protestant's plate is 20.3 cm. It is too large to be substituted for a fruit plate or a cereal bowl. Therefore, the dinnerware is not considered “available for sale in specified sets.”

However, as there have been no major changes to the tariff provisions for articles “available in specified sets” from the TSUS to the HTSUS and no dissimilar interpretation is required by the text of the HTSUS, there is no clear evidence which would require a different interpretation than that given under the TSUS. The term “maximum dimension” refers to the straight-line distance across the face or top of the article whose dimension is specified. It does not place a limit on the size of the item. An article specified in US Note 6(b) to Chapter 69 may exceed the noted dimension so long as it is a reasonable variation. Accordingly, an article described in U.S. Note 6(a) may be classified as being "available in specified sets" in heading 6911 or 6912, HTSUS, even if it, or another article listed in U.S. Note 6(b), exceeds the dimensional descriptions of Additional U.S. Note 6, HTSUS, so long as the dimensional variation is reasonable and provided sufficient evidence is submitted that all 77 pieces of the set are being sold or offered for sale. The ceramic tableware at issue is classified in subheading 6912.00.39, HTSUS.

HOLDING:

The ceramic tableware is classified in heading 6912, HTSUS (2007). Specifically, it is provided for in subheading 6912.00.3900, 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 applicable rate of duty is 4.5 percent ad valorem.

EFFECT ON OTHER RULINGS:

HQ 955838, dated August 8, 1994, is hereby revoked.

In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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