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HQ W967570

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January 31, 2008

CLA-2-OT:RR:CTF:TCM W967570 IOR

CATEGORY: CLASSIFICATION

Tariff No.: 6911.10.38, 6911.10.41, 6911.10.45, 6911.10.52, 6911.10.58, 6911.10.80 HTSUS

Service Port Director
Customs and Border Protection
4915 S. Howell, #200
Milwaukee, WI 53207

Attn: Diann Rodriguez, IS

RE: Protest AFR No. 3701-04-100035; Pillivuyt porcelain

Dear Port Director:

This is our decision on the application for further review (AFR) of protest No. 3701-04-100035, filed against Customs and Border Protection’s (CBP) classification of Pillivuyt porcelain, under the Harmonized Tariff Schedule of the United States (HTSUS). Our decision follows receipt of additional arguments submitted by letters dated October 12, 2005, and June 28, 2007.

FACTS:

The subject three entries of porcelain were made in October and December, 2003, by the protestant, Pillivuyt, USA Inc. (“Pillivuyt USA”). The merchandise was entered under subheadings 6911.10.41 through 6911.10.80, HTSUS, which provide for various articles of “tableware, kitchenware, or other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other.” The entries were liquidated on August 13, 2004, under subheading 6911.10.10, HTSUS, which provides for “tableware, kitchenware, or other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Hotel or restaurant ware and other ware not household ware.” A timely protest was filed by Pillivuyt USA on November 12, 2004.

The protest asserts in general that the merchandise which is the subject of the protested entries should not have been classified under subheading 6911.10.10, HTSUS, because the majority of sales in the United States of the imported merchandise is to “household retail” sellers, as opposed to hotels or restaurants, or their suppliers, and that the imported merchandise belongs to the class or kind of goods that is principally used in households. Specific arguments made in support of the protestant’s position will be addressed in the Law and Analysis section, infra.

The protest includes the following Exhibits:

A: A list of the articles which are the subject of the entries, their asserted classification and duty rate and a cross-reference to exhibit B.

B: The descriptive literature from the Pillivuyt USA website and catalog for each of the items listed in Exhibit A.

C: A summary of Pillivuyt USA’s total sales in 2003.

F: Copies of Pillivuyt USA’s advertising and marketing.

G: Worldwide trade data with regard to imports of goods under heading 6911.10.1000, HTSUS in the U.S. in 2003 and 2004.

H: Entry documents for the subject entries.

The merchandise entered consists of porcelain tableware and kitchenware imported from France, and manufactured by Pillivuyt USA’s parent company, SAS Nouvelle Pillivuyt (“Pillivuyt France”). The merchandise imported on entry xxx-xxxxx25-5 (“entry 5-5”) consists of various quantities of the following, as listed on the invoice: “Romano bowl large 2.5 qt.”, ”octagonal roaster/hors d’oeuv”, “scalloped/pleated 8 oz. Parfait”, “sauceboat with handle”, ” and “warmer for sauceboats”. The merchandise imported on entry xxx-xxxxx72-7 (entry 72-7) consists of various quantities of different items too numerous to list, but includes, “Quartet Nouvelle plate 10 in,” “Quartet Nouvelle plate 11 ½ in”, Sancerre tea cups and breakfast saucers, oval casseroles, egg cups, and “large stackable platters.” The merchandise imported on entry xxx-xxxxx12-7 (entry 12-7) consists of various quantities of items also too numerous to list, but includes various plates, platters, sugar bowls, pitchers, jam pots, and mugs, including “assiette plate paris 9 ½ in.” and “assiette plate paris 10 ½ in.” Each item listed on the invoices has an accompanying part number which corresponds to the catalog information submitted in Exhibit B. The Sancerre articles are white and round, and the Quartet Nouvelle plates are white and square.

Pillivuyt USA has provided CBP with samples. Specifically we have been provided with a 4 oz. Sancerre espresso cup (512212BL), Sancerre espresso saucer (122213BL), 11” Sancerre plate (212228BL) and 10” Nouvelle square plate (214025BL). The 11” Sancerre plate and the Sancerre espresso saucer were submitted to the CBP Laboratories and Scientific Services (LSS) for examination. According to LSS the plate measures 11” in diameter, weighs 31.6 ounces, and has a thickness of 4.7 mm at the rim and 4.8 mm at the center. The saucer measures 5.3 in. (13.4 cm) in diameter, weighs 5 oz. (143.1 gm), and has a thickness of 3.1 mm at the rim and 3.9 mm at the center. In it’s September 13 submission, Pillivuyt asserts that the subject merchandise is composed of 55% kaolin, 25% quartz and 20% feldspar. The alumina content is 20%. Whiting and dolomite are not present in the composition and the merchandise has a water absorption of 0.03% and a thermal resistance of 197°C. The merchandise is shaped either by pressing or casting. After the pieces are shaped they are placed in kilns for the first firing at 900°C for 19 hours. The fired pieces are then glazed. After glazing, the pieces are fired for a second time at 1380°C for 30 hours. Once the pieces have cooled, they are sorted and prepared for packing and shipping.

By submission dated June 28, 2007, Pillivuyt has provided CBP with information regarding the total sales of Pillivuyt France to the U.S. in 2003. According to that information, more than 75% of Pillivuyt France’s sales are to household retailers. An affidavit from an executive with the retailer whose purchases account for the greatest amount of sales to the U.S. by Pillivuyt France, asserts that it is highly unlikely that any of the Pillivuyt porcelain sold through its retail channels were sold for non-household use. In addition, an affidavit from an employee responsible for the retailers business sales states that the business sales division made no sales of Pillivuyt porcelain through 2003 to the time of the submission. The retailer’s business sales division is responsible for sales to corporate and similar non-household purchasers and end-users.

In its submission of October 12, 2005, Pillivuyt asserts that some of the merchandise which was the subject of entries 72-7 and 12-7, and consists of the Plisse and Sancerre lines, would be classifiable as “available in specified sets” under subheading 6911.10.38, HTSUS. In each case the aggregate value of the set would be in excess of $200.00. For each of the two lines, Pillivuyt has attached a description of the nine items making up a set, which are listed under Chapter 69, additional U.S. note 6(b). Pillivuyt’s submission also includes an itemized list for both entries specifying which of the items on the invoices are asserted to be “available in specified sets.”

ISSUE:

Whether the imported porcelain tableware and kitchenware is classified under subheading 6911.10.10, HTSUS, as tableware and kitchenware for hotel and restaurant ware and other ware, or as tableware and kitchenware for household ware, under subheading 6911.10.38 through 6911.10.80, 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, and the protest was timely filed, within ninety days of the liquidation of the entry.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order.

The HTSUS subheadings under consideration in the 2003 HTSUS 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:
6911.10.38 Aggregate value over $200..
Other:
6911.10.41 Steins with permanently attached pewter lids, candy boxes, decanters, punch bowls, pretzel dishes, tidbit dishes, tiered servers, bonbon dishes, egg cups, spoons and spoon rests, oil and vinegar sets, tumblers and salt and pepper shaker sets 6911.10.45 Mugs and other steins.
6911.10.52 Cups valued over $8 but not over $29 per dozen; saucers valued over $5.25 per dozen but not over $18.75 per dozen; soups, oatmeals and cereals valued over $9.30 but not over $33 per dozen; plates over 22.9 but not over 27.9 cm in maximum diameter and valued over $11.50 but not over $41 per dozen; platters or chop dishes valued over $40 but not over $143 per dozen; sugars valued over $23 but not over $85 per dozen; creamers valued over $20 but not over $75 per dozen; and beverage servers valued over $50 but not over $180 per dozen
6911.10.58 Cups valued over $29 per dozen; saucers valued over $18.75 per dozen; soups, oatmeals and cereals valued over $33 per dozen; plates not over 22.9 cm in maximum diameter and valued over $31 per dozen; plates over
22.9 but not over 27.9 cm in maximum diameter and valued over $41 per dozen; platters or chop dishes valued over $143 per dozen; sugars valued over $85 per dozen; creamers valued over $75 per dozen; and beverage servers valued over $180 per dozen
6911.10.80 Other..

Heading 6911, HTSUS, covers all tableware, kitchenware, other household articles and toilet articles, of porcelain or china. Under subheading 6911.10, HTSUS, the tableware and kitchenware is further subdivided into the two distinct categories of 1) articles for hotel or restaurant ware and other ware not household ware, and 2) household ware. The household ware category is further subdivided by articles of bone chinaware and other than bone chinaware, and further subdivided by those available in specified sets and those that are not.

Heading 6911, HTSUS, is a use provision. See Lenox Collections v. United States, 20 C.I.T. 194 (1996); HQ 084122, dated January 9, 1990. Additional U.S. Rule of Interpretation 1(a) provides that “a tariff classification controlled by use (other than by actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” Principal use is the largest use in the United States at the time of importation of articles of the same class or kind as the imported article. In Lenox Collections, the court in its analysis referred to Additional U.S. Rule of Interpretation 1(a) and the need to focus on the principal use of the class or kind of goods to which an import belonged, not the principal use of a specific import, citing Group Italglass U.S.A., Inc. v. United States, 17 C.I.T. 1177, 1177, 839 F. Supp. 866, 867 (1993).

The courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These factors include: 1) general physical characteristics; 2) expectation of the ultimate purchaser; 3) channels of trade; 4) environment of sale (accompanying accessories, manner of advertisement and display); 5) usage of the merchandise; 6) economic practicality of so using the import; and 7) recognition in trade of this use. See Essex Manufacturing, Inc. v. United States, No. 2006-1, slip op. at 14 (Ct. Int’l Trade Jan. 3, 2006). See also Lenox Collections v. United States, 20 CIT 194, 196 (1996). See also United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976); G. Heileman Brewing Co. v. United States, 14 CIT 614, 620 (1990); and Kraft, Inc. v. United States., 16 CIT 483, 489 (1992). We address each of the factors below, and discuss the arguments and facts provided on behalf of the protestant.

1. General Physical Characteristics

In HQ 959745, dated July 20, 1998, CBP addressed whether certain tableware used in the rental industry is classified as tableware for hotel or restaurant and other non-household ware, or as tableware for household ware. In HQ 959745, the physical characteristics of commercial and household china were discussed, as well as the general descriptions set forth in various reference books. The various categories of ceramic tableware are differentiated according to their degree of absorption. American hotel china is described as “a distinctive type of ware, made only in the United States, and widely used in hotels, restaurants, railroad dining cars, hospitals, ships, military camps, lodges and fraternities, and other public and semi-public eating places.” Rexford Newcomb, Jr., Ceramic Whitewares, Pitman Publishing Corp., New York (1947) at pp. 222 and 227. The American hotel china is described as “vitrified ware of very high strength” and is made in three grades based on wall thickness: Grade (1), “Thick china” 5/16 to 3/8 in. (7.9 – 9.5 mm) walls – used in lunch counters and army messes; Grade (2), “Hotel China” 5/32 to ¼ in. (3.9 – 6.3 mm) walls – used in hotels, restaurants; and Grade (3), “medium-weight China”, less than ¼ in. (6.3 mm) walls – used in high-class eating places, home use, also for numerous jars, trays, etc., in hospitals. Felix Singer & Sonja S. Singer, Industrial Ceramics, Chemical Publishing Co., Inc., New York (1963), at p. 1096. It has a medium translucency and a very high mechanical shock resistance. Id., at p. 1089. The American hotel china is composed of kaolin, ball clay, flint, feldspar, whiting and dolomite. The initial firing is at 1320°C (2408°F). Id. It has an absorption of under 0.3%. Ceramic Whitewares, supra, at p. 223.

Another category of ceramics is “hard porcelain,” which is generally made in Europe and Scandinavia, has no absorption, and a medium to high mechanical shock resistance. Industrial Ceramics, supra, at p. 1089; Ceramic Whitewares, supra, at p. 223. Porcelain is described as “absolutely non-porous, non-absorbent, has high translucency, and the hard glaze is extremely resistant to scratching.” Ceramic Whitewares, at 223. The uses are described as quality tableware and artware. The best quality hard porcelain is composed of high purity washed kaolin, pure rock quartz and pure feldspar. It undergoes an initial firing at 800 – 900°C (1472 -1652° F), and after glazing, a firing at 1400-1435°C (2552 -2615°F). Industrial Ceramics, at p. 1099.

In HQ 082780, dated December 18, 1989, CBP considered the classification of china for household use which was also marketed and sold to hotels and restaurants. HQ 959745, supra, noted that a hotel and restaurant brochure for the china in HQ 082780 indicated that the plates and cups are reinforced with fully 38.5% alumina, which reduces chipping and breakage and also improves the heat-retaining quality.

In HQ 962208, dated April 19, 2000, CBP addressed the differences between chinaware marketed as household ware and that marketed as hotel ware, by comparing the descriptions of the china in the respective catalogs. The catalogs described the hotel ware as microwave and dishwasher proof, and addressed weight and stackability. The household ware was described as dishwasher proof, but was not advertised as microwave proof, and the weight and stackability was not addressed. Only the weight of one pattern was addressed. A 10 ½ inch plate sold as hotel/restaurant ware weighed approximately 1 pound and 9.5 oz. The same pattern plate sold as household ware weighed approximately 1 pound and 3 oz.

Based on the foregoing, in terms of thickness, the subject porcelain tableware is comparable to Grade (2) “Hotel China” of the American hotel china, as the plate has a thickness ranging from 4.7 to 4.8 mm from the rim to the center. Alternatively, based on absorption and composition, the subject porcelain is distinguishable from American hotel china, and more closely resembles the “hard porcelain.” The subject porcelain has less alumina than the restaurant china described in a brochure submitted for HQ 082780. The 11 inch plate submitted as a sample weighs 6.1 oz. more than the 10 ½ inch hotel/restaurant ware plate described in HQ 962208, and based on the weight, the subject porcelain is more in line with tableware sold as hotel/restaurant ware than household ware.

The protestant asserts that the subject porcelain is designed and produced to be used as household tableware and cookware, citing to Exhibits B, C and F. The referenced exhibits do not address the design and production of the merchandise, but describe the merchandise, list the customers and show the marketing. The protestant asserts that “porcelain household ware is often characterized by its aesthetically pleasing qualities, elaborate shapes and designs and delicate nature” and contrasts this with porcelain ware designed for use in the service industries as characterized by “its relative strength, utilitarian design and ability to resist chipping and breakage.” Exhibit F includes a document titled “Some Facts About the Pillivuyt Line” and describes “Sancerre” as “the basic white dinnerware.Simple, round lines. Best choice for daily tabletop use as it is easy to clean and will withstand daily household wear and tear.” The Nouvelle Quartet is described “rustic” but contemporary. The “Plisse” is described as the Sancerre line with pleats, and as having a very elegant look. The literature on “How to Use Pillivuyt Porcelain” describes the porcelain as capable of going from the freezer to the oven, microwave or broiler, as dishwasher safe and scrubbable. This document also describes the multiple uses of the dishes as both baking and cooking dishes as well as serving pieces, and some being useful for both baking and roasting. Another document, p. 49 from a catalog, in item F. describes café au lait bowls stating “the superior quality, vitrified porcelain made by Pillivuyt will resist chips and stains.” A document entitled “Sales Arguments” describes the merchandise as “durable kitchen ‘tools’” and in addition to some of the qualities stated above, describes the merchandise as having “many stackable items” and as “strong and durable.” An advertisement repeated in Exhibit F as having been published in several issues of “Fine Cooking,” and appearing to be a standard Pillivuyt advertisement, describes the subject porcelain as “Freezer to oven to table to dishwasher – created for a lifetime of carefree elegance.” A brochure advertising Pillivuyt, not included in Exhibit F, entitled “forme & function” and appearing to be distributed by Pillivuyt USA, states that “Pillivuyt is top of the premier league for strength, convenience and durability” and describes it as shock resistant. While the foregoing is consistent with aesthetically pleasing qualities, and perhaps elaborate shapes and designs, it is not consistent with describing the merchandise as having a “delicate nature,” but is rather consistent with relative strength, utilitarian design and ability to resist chipping and breakage. The multiple uses, simple shapes and ability to go from freezer to oven to table, all indicate a utilitarian design.

The protestant further asserts that while Pillivuyt France produces porcelain intended for use in the service industries as well as porcelain designed for use as household articles, Pillivuyt USA does not import the lines intended for commercial use, and that the items for commercial use often incorporate a reinforced edge and design to facilitate stacking. In support of its position, the protestant cites to Exhibit B, and two items shown in a Collection Générale at the back of the Exhibit which Pillivuyt USA does not import, one of which is a steak plate with a reinforced edge, and one of which is a soup bowl described as stackable. In order to see a clear distinction between porcelain designed for the service industry and that designed for household use, we would expect to see an entire series of items with special features such as reinforced edges and stackable features. The fact that only two items of many have these features does not indicate that the entire group is suitable for restaurant use while the other is not. In addition, the invoice for entry 72-7 includes “large stackable platters.” The description for the item in Exhibit B refers to it as a “caterer’s tray.” Based on this, we find that the descriptions in Exhibit B may not describe all of the features of the articles. In addition, the description of the article as a “caterer’s tray” may be an indication that the article was originally designed for use in the service industry.

The protestant asserts that the pieces designed for use in the service industries are often embossed with a particular restaurant or hotel logo prior to leaving the factory, and the subject porcelain is not available for sale with such a logo. However, literature obtained by the port states with respect to the Sancerre line that it “receives a wide variety of patterns, as well as the name of your establishment or your own pattern.” The Sancerre literature further depicts the same style numbers and descriptions as those shown in Exhibit B, which were imported by the protestant, including plates, ramekins, and a gratin dish. Therefore, it appears that although the protestant may not import the subject porcelain with logos, the very same merchandise is available for sale with a logo. According to the protestant, restaurant and hotel sales are supported by a separate, unrelated distributor in the U.S. Sales figures from that distributor have not been provided. However, the protestant has provided sales figures for Pillivuyt France for the total amount of sales into the U.S., in 2003, including sales to the protestant. As stated in the FACTS, because more than 75% total sales in the U.S. were to household retailers, even if the commercial and household ware pieces are the same, the majority were sold for household use.

The protestant asserts that the subject porcelain is “thinner, lighter, less stackable and may require handcare when cleaning.” We find no evidence to support the foregoing statement. The protestant has not provided dimensions and weights of the items it claims to be for use in the service industry to compare to the dimensions and weights of the subject porcelain. Based on the literature we do not find evidence that any particular line of the porcelain is more stackable than the subject merchandise, and find that the subject porcelain is specifically advertised as being suitable for the dishwasher.

The protestant also asserts that the subject porcelain pieces have a serving capacity suitable for a family of four or six, and a different variety of accessories available as compared to those articles designed for use in the restaurant and hotel industries. The protestant does not provide any examples. We note that one of the articles imported is an individual teapot. This teapot is more likely to be used to serve tea to an individual in a hotel or restaurant than it is to be used to serve a family of four or six. Similarly, while a 3 quart octagonal roaster/ hors d’oeuvre piece may be suitable for roasting a ham for a household of four or six, it is equally suitable for baking a bread pudding at a restaurant or serving hors d’oeuvres at a hotel buffet.

In an internet Tableware report
http://www.yonok.ac.th/finearts/res_ceramic2.html, reflecting a 2002 tabletop market study, it is stated that “for today’s homemaker and hostess, dinnerware must go from freezer, to oven, to table, to dishwasher and still be pretty enough to display on the shelf.” In another internet article, dated April 19, 2004 http://findarticles.com/p/articles/mi_m3072/is_7_219/ai_n6028235, on hotel dinnerware trends, it is stated by representative of Villeroy & Boch, USA, a manufacturer of retail and commercial dinnerware, that “the single greatest thing a hotel demands and we produce are plain, white, round plates.” The report continues to state:

Round and white has been the industry standard for a number of reasons. White goes with everything, so there’s no need to change dinnerware with the change in carpet and curtains. And chefs love a plain white background to set off their food. Plus, it’s functional. Round plates fit easily in a lowerator – a cabinet that holds dinnerware. In addition, plate covers, which are ubiquitous in the banquet arena, most commonly are round.

But according to [the Villeroy & Boch representative], one of the latest trends in dinnerware is adding a new china in different shapes and materials to compliment the existing round white plates.

The subject porcelain meets both of the trends above, for both household china and hotel china. The porcelain is versatile and attractive for household use, and plain, round, and white, and also square/rectangular, for hotel use.

We have not been advised of the existence of any set standard applicable to household ware or hotel ware. A GSA standard for china tableware for mess facilities was determined to be of limited use in HQ 959745, because it was applicable to a narrow line of merchandise and very specific dimensions within that line. Our decision with respect to physical characteristics is limited to the facts and evidence before us. We find that the physical form of the subject porcelain does not conclusively indicate to which class the subject porcelain belongs.

Expectation of the Ultimate Purchaser

The protestant asserts that a restaurant/hotel ware purchaser of porcelain expects that the porcelain “will provide a significant measure of durability which will enable continuous use without regularly purchasing replacements,” and a household ware purchaser has an expectation for “high quality aesthetically pleasing pieces” with an equal or lesser desire for durability. In HQ 959745, supra, it was stated that “with a traditional institutional ware purchaser, the expectation is that the restaurant china will provide a significant measure of durability which will enable continuous use without purchasing replacements” and that for catering and rental companies as well as “high class” eating places utilizing “medium-weight” china, “the durability is not as great a concern as is the eye-appealing quality of the chinaware with its more elaborate shapes, thinner rims and patterns/styles.”

The marketing information for the subject porcelain emphasizes durability, as well as high quality and aesthetically pleasing features. In the advertisements, the marketing addresses the durability by reference to “lifetime”, and aesthetic appeal by reference to “elegant.” In addition, the advertisements in Exhibit F refer to the subject porcelain as “the choice of discriminating cooks worldwide”, which implies superior quality. This criterion supports use of the subject porcelain both in the home and in hotels and restaurants, as it is promoted to be both durable and of high quality and aesthetically pleasing.

Channels of Trade

The protestant asserts that the channels of trade of the subject porcelain are limited to the household retail market. However the protestant also asserts that the Pillivuyt porcelain that is suitable for use in a hotel or restaurant setting is sold either directly through the French manufacturer or through one specific U.S. distributor in New York. According to the protestant, the “Paris,” “Bourges Europe” lines and various pieces in the “Collection Générale” are geared toward the services industries. We do not have specific information with regard to these lines, but based on total sales into the U.S., even if the sales of these particular lines were limited to the service industry, such sales do not account for a majority of Pillivuyt France’s total sales into the U.S. As stated in the FACTS section, more than 75% of Pillivuyt France’s sales in the U.S, are to household retailers. The entry documents which are the subject of this protest show that 11 of the imported pieces were from the “Paris” and “Bourges Europe” lines. This is a relatively small number of pieces out of all of the entered items.

This criterion supports a finding that the subject porcelain belongs to the class or kind of good principally used as housewares over restaurant or hotel ware. The criterion supports a finding that the Pilivuyt porcelain imported into the U.S. was sold primarily to retailers of housewares.

Environment of Sale

Next, we consider the environment in which the merchandise is advertised and displayed. The promotional literature provided in Exhibit F indicates that the porcelain imported by the protestant is advertised in magazines geared to home cooks, and that the protestant’s promotional materials are geared towards home use by including family sized recipes, and making references to “daily household wear and tear.” However, again, the marketing pertains only to the porcelain imported by the protestant. As stated by the protestant, the same porcelain is also imported by a distributor for hotels and restaurants. We do not have any evidence that the porcelain imported by the other distributor is limited to the “Paris” and “Bourges Europe” lines, or that those lines are more suitable for hotels and restaurants. To the contrary, we have the marketing literature which promotes the “Sancerre” line as suitable for hotel and restaurant logos and designs.

The photographs in Exhibit F, depict the porcelain in shelves and a home oven, as well as artistically grouped and do not show them in restaurant settings. In other literature at least one brochure depicts the porcelain with a logo and pattern in a restaurant/hotel setting. In general, the literature simply shows the porcelain on its own or with food, but not depicting either a home or hotel/restaurant setting. We do not have marketing literature for the sale of the porcelain imported by the other distributor.

An internet description by a customer of the protestant describes the Sancerre plate as “fine restaurant dinnerwarestands up to the most demanding environments and always looks great.” Another of the housewares internet dealers, this one listed in Exhibit C, provides a history of Pillivuyt and lists the attributes of the porcelain. In describing the strength of the porcelain, it is stated that “discerning chefs and restaurateurs favor Pillivuyt for its longevity and resistance to chipping.” The statement is similar to the Pillivuyt slogan “the choice of discriminating cooks worldwide.” In another promotional item previously provided to the port by the protestant, the same dealer’s promotional literature printed from the internet, states that the porcelain “is renowned for the tough, elegant oven to table porcelain still used in French restaurants today.” Neither statement tells us how the porcelain is principally used in the U.S. The use in French restaurants is not relevant to determination of principal use in the U.S. The statements are marketing tools that imply use in restaurants, as well as use by experienced cooks. We note the term “cooks” is used as opposed to chefs in the slogan. The term “cooks” includes those cooking at home as well as chefs in hotels and restaurants.

HQ 962208, dated April 19, 2000, compared china sold in retail catalogs (household china) and china sold in commercial catalogs (hotel ware). Typically the retail catalogs made the china available in 5-piece place settings, and offered one size plate, such as a dinner plate. The china sold in the commercial catalogs was offered with plates and bowls in different sizes. For example one plate for a pattern in the commercial catalog was offered in six sizes. In the subject protest, there is no indication that the porcelain is available in settings, such as a two or three piece setting. In addition, the plates, bowl and cups are available in numerous sizes. For example, according to Exhibit B, the Sancerre plates are available in 8 sizes, ranging from 6 to 12 and ¼ inches. The cups are available in three different sizes, from 4 oz. to 10 oz. capacity. The “classic footed bowls” are available in 7 sizes, ranging from 12 oz. to 4 qt. Capacity. Such a variety of sizes is consistent with the sale of tableware sold by internet restaurant suppliers. For example, at Zesco.com, a restaurant supply and equipment website, the “Hotwave” plates by Villeroy and Boch are sold by the case, and are available in four sizes, one small and three large. The similarly styled “New Wave” plates available at Dinnerwareetc.com, a houswares and gift internet retailer, are sold individually and are available in three sizes, bread and butter plate, salad plate, and dinner plate. The subject porcelain is available by the individual piece and does not appear to be sold in place settings.

Under this criterion, the subject porcelain has the characteristics of both household ware and restaurant/hotel ware. It is marketed as being both durable and attractive, and is available individually by the piece, and is available in multiple sizes.

Usage of the Merchandise

The protestant makes two points with respect to this criterion, which it asserts supports finding this merchandise to be for household use. The first point addresses the character of the porcelain pieces. First it is asserted that the bakeware, decorative accessories, soufflé and tart dishes, large serving platters, miniatures and utility pieces are unsuitable for use in the service industries. It is stated that the relative size of the items makes them unsuitable for use in the service industries, because bakeware used to prepare dishes to serve six to eight are unsuitable for a restaurant setting. It is asserted that in a restaurant a dish could not be prepared in advance, frozen, baked and then served in the same dish because restaurant meals are either prepared individually to order or in an industrial size pan. Also, along these lines, it is stated that the specialty and miniature pieces are unsuitable for use in a commercial dishwasher and would require hand care. The second point is that in prior decisions, CBP has relied at least in part on the percentage of sales for household use compared to restaurant or hotel use, and that the fact that the larger percentage of the sales of the subject merchandise are to retailers catering to household use, supports the conclusion that the porcelain was used as household ware at, or immediately prior to the importation of the merchandise.

With regard to the character of the pieces, we do not have enough information to ascertain precisely how a restaurant kitchen operates. The fact that the subject porcelain is marketed for discerning and discriminating cooks, described as “elegant”, and is relatively expensive (see “Economic practicality of so using the import” infra), supports that the subject porcelain would be used in upscale restaurants. It is less likely that such upscale restaurants prepare dishes in industrial size pans. It is common in upscale restaurants to see whole tarts and cakes on a desert display, and for the customer to choose a desert from the display. In addition, for example if a main dish, such as a steak is accompanied by a vegetable of pureed and baked squash, it is unlikely that each serving of the squash is made individually. Most likely it is baked in a piece that is sufficient for several servings. However, the foregoing is speculation. As is evidenced by Exhibit C, restaurants and hotels do purchase the porcelain from the protestant, and there is a separate distributor for the porcelain sold to hotels and restaurants. We have not been provided with evidence that the porcelain sold by the other distributor consists of other lines or is different from the porcelain at issue. In addition, the “Sancerre” line is clearly also marketed for use by hotels and restaurants, as described above. Finally, there is no evidence in any of the materials provided that any of the porcelain requires hand care, or is not suitable for commercial dishwashers.

With regard to the percentage of sales argument, according to the information presented, in 2003, the majority of sales of Pilivuyt porcelain in U.S. was to household ware retailers. The protestant asserts that this information supports a determination that the subject merchandise is household ware, and cites to HQ 082780, dated December 18, 1989, and NY C88291, dated December 11, 1998. In HQ 082780, the china at issue was produced chiefly for household use and was also marketed and sold to hotels and restaurants. In that case, there was no issue whether the china was produced for household or restaurant/hotel use, and the percentage of total sales to hotels and restaurants compared to other sales was provided. In that case, based on a greater percentage of sales as household ware, at the time of the decision, the china which was not modified with a hotel/restaurant logo or design, was classified as household china. In NY C88291, the merchandise consisted of white porcelain tableware marketed and sold for hotel, restaurant and household use. In that case, there was evidence that 60% of the dinnerware at issue had been sold to hotel and restaurant users. The tableware was classified as hotel or restaurant ware.

The percentage of sales information provided with respect to all Pilivuyt porcelain imported into the U.S. supports that the greater percentage of sales are for household use. This last criterion therefore supports use of the subject porcelain as household ware.

Economic Practicality of So Using the Product

The protestant asserts that the relatively high prices of the subject porcelain make it economically impractical for the service industries given the amount of breakage in the restaurant business. However it could also be argued that paying such high prices for durability is impractical for household ware as it does not get as much use as in a restaurant.

The protestant cites to Exhibit G, to show that the majority of goods under subheading 6911.10.1000 HTSUSA (hotel and restaurant ware) were imported from China and Thailand (73.5%) in 2003 compared to the value of goods under that same subheading from those countries (42.2%). The protestant asserts that the majority of hotel and restaurant ware consists of lower cost merchandise. Only 1.9% of the value of goods under subheading 6911.10.1000 HTSUSA were imported from France. Moreover, for goods in that subheading, the average price per dozen pieces from China and Thailand were $4.63 and $15.20, respectively, while the average price per dozen for goods from France was $45.77. The protestant asserts that this supports the argument that the higher priced items such as the subject porcelain is principally used as household ware and not in hotels and restaurants.

We agree that Exhibit G shows that the more expensive tableware and kitchenware of porcelain and china is imported less for use as hotel and restaurant ware and more for household ware. This criterion supports use of the subject porcelain as household ware.

Recognition in Trade of this Use

The protestant asserts that Exhibit F demonstrates that the subject porcelain is recognized as tableware and cookware for the household setting. We agree, however, it does not mean that the subject porcelain cannot also be recognized as tableware and cookware for hotels and restaurants. Interestingly, the marketing of the subject porcelain as household ware touts the use of the merchandise in restaurants in France and as restaurant dinnerware. As stated before, we have only been provided with a limited amount of marketing for the hotel and restaurant trade. There is evidence that the porcelain is marketed as suitable for logos and designs, and that in fact it is sold to hotels and restaurants and at least one restaurant supply business.

The protestant asserts that the most popular restaurant supply internet retailers do not carry Pillivuyt porcelain. We do not see that as a persuasive argument because it is clear from the limited sales in general of the subject porcelain, that it is a specialty item and most likely would not be available at the most popular restaurant supply internet retailers. Similarly, the merchandise is not available from the most popular internet household ware retailers.

The protestant asserts that on Ebay all of the Pillivuyt articles listed are in the “Pottery & Glass”, “Collectibles”, “Home and Garden” or “Antiques” categories rather than among the restaurant “Dinnerware” and Tabletop Accessories” categories. However, we also found that 140 qt. capacity commercial stock pots were also listed in the “Home & Garden” category.

We find this criterion to be inconclusive as to how the subject porcelain is recognized in the trade. It appears that the merchandise is recognized as restaurant ware, and is marketed as such for use in the household.

Based on the above factors, we must determine the principal use and function of the subject porcelain or whether such a determination can be made. The channels of trade, use of the merchandise and economic practicality factors indicate that the subject porcelain is principally used as household ware, while the remaining factors are inconclusive. When some or all of the factors applied here have been analyzed in the courts, a determination of principal use has been based on all or most of the factors addressed being determinative. See, e.g., Essex Manufacturing, Inc. v. United States, supra, St. Eve International v. United States, 267 F.Supp.2d 1371 (Ct. Int’l Trade, 2003), G. Heileman Brewing Co. v. United States, supra, Lenox Collections v. United States, supra, and United States v. Carborundum Co., supra. In this case, three factors help us determine the principal use of the subject porcelain. Given that one of these includes the greater percentage of sales for household use, and that type of evidence has been used to determine the use in prior CBP decisions, we conclude that the evidence supports a finding that the subject porcelain is of a class or kind of merchandise principally used as household ware. Based on the foregoing we find that the subject porcelain is classifiable under subheading 6911.10.38 to 6911.10.80, HTSUS.

With respect to whether certain items in entries 72-7 and 12-7 are classifiable as “available in specified sets,” in subheading 6911.10.38, HTSUS, additional U.S. Note 6 to Chapter 69 is applicable. Additional U.S. Note 6 to Chapter 69, HTSUS, reads:

6. 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.

Based on the evidence reviewed by CBP, we find that it has been established that the pieces required in additional U.S. note 6(b) are available with respect to the Plisse and Sancerre lines, The interpretation of additional U.S. note 6(b) was revised by a Revocation of Ruling Letters and Revocation of Treatment Relating to Tariff Classification of Ceramic Articles “Available in Specified Sets” by notice published in the Customs Bulletin and Decisions, Vol. 40, No. 8, on February 15, 2006 (see HQ (967792 and HQ 967920, dated January 20, 2006). The interpretation of additional U.S. note 6(b) was again revised by a Revocation of Ruling Letters and Revocation of Treatment Relating to Tariff Classification of Tableware Available in Specified Sets by notice published in the Customs Bulletin and Decisions, Vol. 41, No. 35, on August 22, 2007 (see W968400, H004625, H004642, H004643, and H010776, dated August 6, 2007. Neither of the revocations is applicable to the entries which are the subject of this protest, as they were made prior to the effective dates of the revocations. With regard to any other entries, the applicable interpretation of additional U.S. note 6(b) is dependant on the date of entry or withdrawal from warehouse for consumption of the merchandise at issue. and the aggregate value of the foregoing items is over $200. Therefore, the articles in the Plisse and Sancerre lines are classifiable under subheading 6911.10.38 as “[t]ableware, 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 over $200.”

The remaining items are classified in subheadings 6911.10.41 to 6911.10.80, HTSUS.

HOLDING:

By application of GRI 1 the Plisse and Sancerre lines of the subject porcelain are classified in subheading 6911.10.3810 HTSUSA, which provides for “[t]ableware, 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 over $200plates not over 27.9 cm in maximum dimension; teacups and saucers; mugs; soups, fruits and cereals, the foregoing not over 22.9 cm in maximum dimension,” and for “[t]ableware, 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 over $200other,” with a column one, general duty rate of 6% ad valorem.

The remaining articles are classified in subheadings 6911.10.41 to 6911.10.80, which provide for other specified tableware and kitchenware items, with a column one, general duty rate ranging from 6% to 21.3% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

The protest should be granted. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade 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

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See also:

• Tariff No.: 6911.10.10 - Porcelain or china hotel, restaurant & nonhousehold table and kitchenware
• Tariff No.: 6911.10.35 - Porcelain or china (o/than bone china) househld tabl. & kitch.ware in sets in which aggregate val. of arts./US note 6(b) n/o $56
• Tariff No.: 6911.10.37 - Porcelain or china (o/than bone china) househld tabl. & kitch.ware in sets in which aggregate val. of arts./US note 6(b) o/$56 n/o $200
• Tariff No.: 6911.10.38 - Porcelain or china (o/than bone china) househld tabl. & kitch.ware in sets in which aggregate val. of arts./US note 6(b) o/$200
• Tariff No.: 6911.10.41 - Porcelain or china (o/than bone china) hsehld steins w/pewter lids, decanters, punch bowls, spoons & rests, salt/pepper sets, etc.
• Tariff No.: 6911.10.45 - Porcelain or china (o/than bone china) household mugs and steins w/o attached pewter lids
• Tariff No.: 6911.10.52 - Porcelain or china (o/than bone china) hsehld tabl/kit.ware n/in specif.sets,cups o/$8 but n/o $29/dz, saucers o/$5.25 but n/o $18.75/dz,etc
• Tariff No.: 6911.10.58 - Porcelain or china (o/than bone china) hsehld tabl/kit ware n/in specif. sets, cups o/$29/dz, saucers o/$18.75/dz, bowls o/$33/dz, etc.
• Tariff No.: 6911.10.80 - Porcelain or china (o/than bone china) household tableware & kitchenware, not in specified sets, nesoi
• Tariff No.: 6912.00.35 - Ceramic (o/than porcelain or china) household table and kitchenware, in sets in which aggregate val. of arts./US note 6(b) n/o $38
• Tariff No.: 6912.00.39 - Ceramic (o/than porcelain or china) household table and kitchenware, in sets in which aggregate val. of arts./US note 6(b) o/$38