HQ W967570

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]{.underline}, 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]{.underline}, 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]{.underline}, 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]{.underline}, No.
2006-1, slip op. at 14 (Ct. Int'l Trade Jan. 3, 2006). *See also* [Lenox
Collections v. United States]{.underline}, 20 CIT 194, 196 (1996). *See
also* [United States v. Carborundum Co.]{.underline}, 63 CCPA 98, 102,
536 F.2d 373, 377 (1976), *cert denied*, 429 U.S. 979 (1976); [G.
Heileman Brewing Co. v. United States]{.underline}, 14 CIT 614, 620
(1990); and [Kraft, Inc. v. United States.]{.underline}, 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]{.underline}

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[^1], 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[^2], 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 dinnerware...stands 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]{.underline}, *supra,* [St. Eve
International v. United States]{.underline}, 267 F.Supp.2d 1371 (Ct.
Int'l Trade, 2003), [G. Heileman Brewing Co. v. United
States]{.underline}, *supra,* [Lenox Collections v. United
States]{.underline}, *supra*, and [United States v. Carborundum
Co.]{.underline}, *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:

(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.

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,[^3] 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 \$200...plates 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 \$200...other," 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/](http://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
>
> Director, Commercial and
>
> Trade Facilitation Division

[^1]: http://www.yonok.ac.th/finearts/res_ceramic2.html

[^2]: http://findarticles.com/p/articles/mi_m3072/is_7_219/ai_n6028235

[^3]: 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.