# HQ 962208

April 19, 2000

CLA-2 RR:CR:GC 962208K

CATEGORY: Classification

TARIFF NO.: 6911.10.10; 6911.10.35; 6911.10.37; 6911.10.38

Port Director

Port of New York

U.S. Customs Service

6 World Trade Center

New York, NY 10048

RE: Review of Protest 1001-98-101682; Rosenthal USA Ltd.; Chinaware

Dear Port Director:

The following is our response to the referral by your office, dated
September 9, 1998, of the request for further review of the
above-referenced protest.

**FACTS**:

The consumption entry covering the imported merchandise was liquidated
on March 6, 1988, under the provision for porcelain or china tableware
and kitchenware, for hotel or restaurant ware and not household ware, in
subheading 6911.10.10, Harmonized Tariff Schedule of the United States
(HTSUS) (1997), with duty at the general rate of 32% ad valorem. A
timely protest under 19 U.S.C. 1514 was received on June 4, 1998. The
protestant requested reliquidation of the entry under the provision for
porcelain or china tableware and kitchenware, other household ware, in
subheading 6911.10.38, HTSUS, with duty at the general rate of 6.8% ad
valorem. A meeting was held on November 3, 1999, with counsel
representing the protestant to discuss the merits of the issues followed
by a further submission dated December 22, 1999.

The manufacturer is Rosenthal Ag, Germany and the protestant is
Rosenthal, USA. A brochure or catalog entitled Sanssouci, [Daten and
Fakten 93/94, Rosenthal Classic, Rosenthal AG Hotel & Restaurant
Service,]{.underline} a [Rosenthal Hotel & Restaurant
Service]{.underline} catalog, pages 5 through 143 dated 3/97
(hereinafter referred to as the commercial catalog), a [Rosenthal Price
Book]{.underline} (hereinafter referred to as the retail catalog), with
a list price, effective May 1, 1996, were submitted. The file under
review contains two samples of Rosenthal Classic dinner plates described
as "Commercial,

Monbijou, 11420-30027" and "Retail Monbijou, 10420-10226". Although the
invoices list articles, including plates in the commercial Monbijou
pattern, the invoices do not include the specific plates as represented
by the samples.

The protestant, Rosenthal USA Ltd, maintains two divisions, one for
retail (which may be considered as household ware) and one for
commercial (which may be considered as hotel ware). The chemical
composition of the chinaware is stated to be identical for both retail
(household) and for commercial (hotel ware). The protestant opines that
both the retail and the commercial chinaware are household ware, and
that hotels and restaurants purchase the chinaware " because of its
sleek, lightweight appearance and design which result in an elegant
product of the kind recognized by sophisticated individuals as that
which is used in their own homes for special occasions." The protestant
suggests that the Monbijou and the Sanssouci patterns, as advertised in
the commercial and retail catalogs, are similar and that the patterns in
the retail are household and therefor, the patterns in the commercial
catalog are also household and not hotel ware.

In the submission dated August 11, 1998, the protestant indicated that
in 1997, the company's (total) sales were 61.5% retail and 38.5%
commercial. In a submission dated December 22, 1999, it was indicated
that the ratio of sales for the Sanssouci patterns in 1998, was 78% for
commercial and 22% for retail. However, through September 1999, the
ratio of sales for commercial was 38% and 62% for retail. No statistics
were submitted to show the percentages of commercial versus retail sales
for the patterns and articles listed in the commercial catalog.
Likewise, no statistics were submitted to show the percentages of
commercial versus retail sales for the patterns and articles listed in
the retail catalog. Specifically, no statistics were submitted to show
the percentages of commercial versus retail sales for the Sanssouci
articles listed in the commercial catalog or for the Sanssouci articles
listed in the retail catalog.

The commercial Monbijou dinner plate, as represented by the sample is
approximately 10 ½ " in diameter including the rim of 1¼ " leaving 8 ¼ "
of serving capacity. There is a foot (on the bottom or back side of the
plate) of approximately

6 ¾" in diameter, and the plate weighs approximately 1 pound and 9.5
ounces. The bottom or backside of the plate contains the glazed logo
"Rosenthal, Classic, Hotel & Restaurant Service, Germany ©".

The retail Monbijou dinner plate, as represented by the sample is
approximately 10 ½ " in diameter including the rim of 1½" leaving 7" of
serving capacity. There is a foot (on the bottom or backside of the
plate) of approximately 6 inches in diameter, and the plate weighs
approximately 1 pound and 3 ounces. The bottom or back side of the plate
contains the glazed logo "Rosenthal, Classic, Germany, 1"

Both plates are entirely white except for the green colored logos, which
are registered trademarks. The plates are not decorated although there
are some designs on the rims. The commercial catalog refers to the plate
as a "plate flat" and the retail

catalog refers to the plate as a "dinner plate 10.25". The rim of the
commercial 10 ½" flat plate is thicker than the rim of the retail 10 1/4
" dinner plate. The commercial plate weighs more and has more serving
capacity than the retail dinner plate.

The commercial catalog offers a potential commercial customer the option
to purchase the chinaware with the logo or name of the establishment
glazed and fired on the dinnerware that will not fade away with everyday
use. The retail catalog does not offer a similar service. The commercial
white chinaware for the Monbijou and Sanssouci patterns is advertised as
microwave and dishwasher proof. The retail white chinaware for the
Monbijou and Sanssouci patterns are advertised as dishwasher proof (but
does not include microwave proof) and there is no option for a logo. The
commercial catalog for these patterns does not indicate that handcare
was recommended or that the articles were dishwasher safe (as compared
with dishwasher proof). Some of the articles in decors other than white
in the retail catalog indicate that handcare is recommended and they are
dishwasher safe (as compared with dishwasher proof). The commercial
catalog has additional columns concerning weight and stackability of the
dinnerware that are not found in the retail catalog.

In the catalogs and the invoices, the "form" numbers indicate the style
patterns, the "decor" numbers indicate whether the articles are white,
colored or decorated and the "article" number indicates the type of
article such as a plate or saucer, etc. When the same pattern or style
is listed in both the commercial and retail catalogs, different form and
article numbers are used for identification purposes. For example, the
commercial catalog uses form \# 11420 to identify the Monbijou style and
article \# 30027 is used to identify a 27 cm (10 ½") flat plate,
whereas, in the retail catalog, form \# 10420 is used to identify the
Monbijou style and article \# 10226 is used to identify a "dinner plate
10.25". Not all of the form style patterns are listed in both catalogs.

The invoices list the forms, decor, and types of articles covered by the
entry and subject to the protest as follows.

Form 61000 is found in the retail catalog ([Rosenthal Price
Book]{.underline}) at page 13 c as Rosenthal Versace Casual but the
specific decors \# 406120, \# 406121 and \# 406123 are not listed in the
catalog. The dinnerware is sold in 5 piece settings and advertised as
dishwasher proof. The catalog does not indicate whether the articles are
microwave proof, the weights and stackability of the articles are not
indicated and only one size dinner plate is available depending upon the
decor. The Rosenthal Versace Casual pattern is not found in the
commercial catalog.

Form 03500, with decors \# 403500 through \# 403508, and a variety of
articles, is found in the retail catalog at pages 22 and 23 as Rosenthal
Renaissance. The dinnerware is sold in 5 piece settings, is available in
multiple designs and colors and advertised as dishwasher proof. The
catalog does not indicate whether the articles are microwave proof and
the weights and stackability of the articles are not indicated. The
Rosenthal Renaissance pattern is not found in the commercial catalog.

Form 13450, with decor \# 80 0001 (white), article \# 30029, is found in
the commercial catalog at page 21, as the Rosenthal Laola studio-line
pattern. Article 30029 is listed as a 29 cm (11 ½") flat plate. The flat
plate is available in six different sizes and the catalog indicates the
weight and stackability for each plate. The catalog indicates that the
article is microwave and dishwasher proof. The Rosenthal Laola pattern
is not found in the retail catalog.

Form 89000, with decor \# 80 0001 (white), article \# 38906 (cappuccino
saucers), is found in the commercial catalog at page 97, as the
Sonderatikel Special Items. No information is indicated concerning
microwave or dishwasher proof. The weight is indicated but the
stackability is not included for any of the articles listed in this
pattern as special items. The Sonderatikel Special Items are not found
in the retail catalog.

Form 11420, with decor \# 80 0001 (white), articles \# 34415 (creamers),
\# 34001 (bases for coffee pots), \# 3402 (lids for coffee pots), \#
30606 and \# 33012 (bowls), \# 34611 and \# 34609 (saucers), \# 31230
(soup plates), \# 33150 (pasta/salad bowls), \# 30512 (fruit bowls), \#
30019, \# 30022, \# 30025, (flat plates of various dimensions, however,
the sample Monbijou 27 cm flat plate, article \# 30027 is not included
in the invoices), \# 34211 (teapot bases), \# 34212 (tea pot lids), \#
34627 (cups), and \# 34652 (coffee mugs), is found in the commercial
catalog at page 57 as the Rosenthal Classic Monbijou pattern. The flat
plate is available in 6 sizes and the catalog indicates that the
articles are microwave and dishwasher proof and lists the total weight
and stackability of the articles. The Rosenthal Classic Monbijou pattern
is found as form \# 10420 in the retail catalog at page 21. None of the
articles in the retail Monbijou Classic pattern are included in the
invoices. The retail catalog only provides for one size plate, a "dinner
plate 10.25". The retail Monbijou pattern is available in 5-piece place
settings and the weights and stackability of the articles are not listed
in the retail catalog. Further comparisons of the commercial and retail
Monbijou patterns are discussed above.

Form 10630, with decor \# 80 0001 (white), article \# 31230 (a soup
plate), is found in the commercial catalog at page 45 as the Rosenthal
Classic Epoque pattern. The catalog indicates that the soup plate is
available in 3 sizes, is microwave and dishwasher proof, and lists the
total weights and stackability. The Epoque pattern is not found in the
retail catalog.

Form 12480, with decor \# 80 00001 (white), articles \# 30029 (27 cm
flat plates), \# 34211 (teapot bases), \# 34212 (teapot covers), and \#
34611 (saucers), is found in the commercial catalog at page 63 as the
Rosenthal Classic Sanssouci pattern. The flat plate is available in 6
sizes and the catalog lists the weights and stackability of the
articles. The capacities for the tea pots and soup bowls are indicated.
The white articles, decor \# 80 0001, are microwave and dishwasher
proof. None of the articles in the commercial catalog for form 12480
indicate that handcare is recommended. The Rosenthal Classic Sanssouci
pattern is found as form 10480 in the retail catalog at page 25. None of
the articles in the retail Sanssouci pattern are included in the
invoices. The retail catalog only provides for one size for a "dinner
plate 10.25". The retail Sanssouci pattern is available in 5-piece place
settings. The weights and stackability of the articles are not listed in
the retail catalog. The white decor is listed as dishwasher proof but
not listed as microwave proof. The weights and stackabilites of the
articles are not indicated. The decors for the four colored decorated
patterns are not listed as dishwasher proof or microwave proof. Two of
the decorated patterns indicate they are dishwasher safe and the two
others indicate that handcare is recommended.

Form 18610, with decor \# 80 0001 (white), articles \# 30016 (16 cm flat
plates), \# 30026 (26 cm flat plates), \# 30123 (23 cm soup plates), \#
30512 (fruit compotiers), \# 34415 (creamers), \# 35072 (trays), \#
32628 (28 cm oval plates), and \# 32633 (33 cm oval plates), is found in
the commercial catalog at page 15, as the Rosenthal studio-line Cupola
pattern. The white decor is indicated as dishwasher and microwave proof,
flat plates are available in 6 different sizes and the weights and
stackability are indicated. The Rosenthal studio-line Cupola pattern is
also found in the retail catalog at page 16 as form 18600 but this form
is not included in the invoices. There is only one size plate available
in the retail catalog referred to as a (dinner plate 12.25") and the
pattern is available in 5-piece place settings. The pattern is
dishwasher proof but not microwave proof and the weights and
stackability are not indicated.

Form 18510, with decor \# 80 0001 (white), articles \# 30016 (16.3 cm
flat plates), \# 346673 (tasse cups), \# 34611 (tasse saucers) is found
in the commercial catalog at page 11, as the Rosenthal studio-line
Ametria pattern. The white articles are dishwasher and microwave proof,
flat plates are available in 6 different sizes and the weights and
stackability of the plates are indicated. All of the white and
colored-decorated articles in form 18510 are dishwasher microwave proof
and handcare is not recommended for any of the articles. The Ametria
pattern is not found in the retail catalog. However form 18500, the
Rosenthal studio-line Asymmetria pattern, page 15 of the retail catalog
is similar but this form is not included in the invoices. Only one
"dinner plate 10.5" is available and the pattern is available in 5 piece
place settings. The white décor is dishwasher proof but not microwave
proof. Handcare is recommended for the decor 405801 (white-gold), and
dishwasher safe is indicated for the decor 405811 (gold-ribbon).

**ISSUE**:

Whether the tableware and kitchenware of porcelain or china is
principally used as hotel or restaurant ware or as household ware.

**LAW AND ANALYSIS**:

The classification of imported merchandise under the HTSUS is governed
by the principles set forth in the General Rules of Interpretation
(GRI). GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff

schedule and any relative section and chapter notes and, unless
otherwise required, according to the remaining GRI, taken in their
appropriate order. Accordingly, we first have to determine whether the
articles are classified under GRI 1. We are satisfied that the
classification is by virtue of GRI 1 as reflected in our determination
that follows.

Subheading 6911.10 at the international level and at the HTSUS level,
provide for tableware and kitchenware of porcelain or china. Subheading
6911.10, HTSUS, is further broken out at the eight-digit level.
Subheading 6911.10.10, HTSUS, provides for tableware and kitchenware and
other ware **not household ware**. **Household tableware and
kitchenware** of porcelain and china are provided for in subheadings
6911.10.15 through 6911.10.80, HTSUS. (Emphasis added.) Subheading
6911.10. 38, HTSUS, provides for household tableware and kitchenware
available in specified sets with an aggregate value over \$200.

Rules 1. (a) and ( b) of the Additional U.S. Rules of Interpretation,
HTSUS, provides the following;

> 1\. In the absence of special language or context which otherwise
> requires\--

\(a\) a tariff classification controlled by use (other than 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**; (Emphasis added.)

\(b\) a tariff classification controlled by the actual use to which the
imported goods are put in the United States is satisfied only if such
use is intended at the time of importation, the goods are so used and
proof thereof is furnished within 3 years after the date the goods are
entered;

The subheadings of 6911.10, HTSUS, at the eight digit-level are "use"
provisions. See [Lenox Collections v. United States]{.underline}, 19 CIT
345 (1995). These competing provisions of the tariff are use provisions.
Once the facts determine the principal use of the tableware, it follows
that the merchandise is classified by virtue of GRI 1. This issue, the
principal use of hotel versus household tableware, was thoroughly
covered in Headquarters Ruling Letter 959745, dated July 20, 1998, and
we quote the following from that ruling;

While Additional U.S. Rule of Interpretation 1(a) provides general
criteria for discerning the principal use of an article, it does not
provide specific criteria for individual tariff provisions. However, the
U.S. Court of International Trade (CIT) has provided factors, which are
indicative but not conclusive, to apply when determining whether
particular merchandise falls within a class or kind. They include:
general physical characteristics, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories,

> manner of advertisement and display), use in the same manner as
> merchandise which defines the class, economic practicality of so using
> the import, and recognition in the trade of this use. See, [Kraft,
> Inc, v. U.S]{.underline}., USITR, 16 CIT 483, (June 24, 1992)
> (hereinafter Kraft); [G. Heilman Brewing Co. v. U.S]{.underline}.,
> USITR, 14 CIT 614 (Sept. 6, 1990); and [U.S. v. Carborundum
> Company]{.underline}, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976),
> cert. denied, 429 U.S. 979[; Lenox Collections v. United
> States]{.underline}, 20 CIT, Slip Op. 96-30 (Feb. 2, 1996).

The best facts available for the class or kind to which the Rosenthal
dinnerware patterns and articles belong that determine principal use are
the differences and comparisons of the articles listed in the Rosenthal
commercial and retail catalogs. These differences were described in
extensive detail under the facts above. Generally, the dinnerware listed
in the commercial catalog are thicker, heavier, stackable, microwave
proof, dishwasher proof, do not require handcare, have a greater serving
capacity and a greater variety of accessories are available (such as
matching vases and ashtrays) as compared to the dinnerware listed in the
retail catalog. The patterns and articles listed in the two catalogs are
not interchangeable. The hotel or restaurant owner using the Monbijou
pattern listed in the commercial catalog cannot replace any broken
plates by ordering plates from the retail catalog.

In their catalogs, Rosenthal Ag, the German manufacturer, and its
subsidiary-importer, Rosenthal USA, have created a catalog identifying
their patterns and articles of dinnerware that meet the needs of hotels
and restaurants and a catalog identifying their patterns and articles of
dinnerware for household use. The importer is in the position to show by
statistics that the sale of such articles listed in the commercial
catalog are principally sold in **their** retail outlets. No such
information has been submitted.

The criteria for principal use as cited by the court appears to be met
in this case. In the absence of other information for specific patterns
and articles, we believe that the best available evidence to show
principal use for the articles covered by the consumption entry, are the
protestants own commercial and retail catalogs

**HOLDING**:

The Rosenthal chinaware articles covered by the consumption entry that
are described above and as listed in the protestant's catalog,
[Rosenthal Hotel & Restaurant Service]{.underline}, March 1997, are
classified under the provision for porcelain or china tableware and
kitchenware, for hotel or restaurant ware and not household ware, in
subheading 6911.10.10, HTSUS.

The Rosenthal chinaware articles covered by the consumption entry that
are described above and as listed in the protestant's catalog, The
[Rosenthal (retail) Price Book]{.underline}, February 1998, are
classified under the provision for porcelain or china tableware and
kitchenware, other household ware, in subheadings 6911.10.35, 6911.10.
37, and 6911.10.38, HTSUS, depending on the aggregate value of the
articles listed in Additional U.S. Note 6(b) of Chapter 69.

You are directed to allow and disallow the protest in part based on
these holdings.

Headquarters Ruling Letter 959745 dated July 20, 1998, is followed and
affirmed.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
Revised Protest Directive, dated August 4, 1993, a copy of this decision
attached to Customs Form 19, Notice of Action, should be provided by
your office to the protestant no later than 60 days from the date of
this decision and any reliquidations of entries in accordance with this
decision must be accomplished prior thereto.

Sixty days from the date of this decision the Office of Regulations and
Rulings will take steps to make this decision available to Customs
personnel, and to the general public on the Customs Home Page on the
World Wide Web at www.customs.gov, by means of the Freedom of
Information Act and other public access channels.

.

Sincerely,

John Durant, Director

Commercial Rulings Division