May 30, 2007 CBP Bulletin Notice on Tableware Available in Specified Sets

Proposed revocation of rulings; proposed revocation of treatment. CBP is proposing to revoke five rulings on the classification of tableware available in specified sets. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed ruling revocations, or any party involved with a substantially identical transaction, should advise CBP by June 29, 2007, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

In addition, CBP states that this notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Tableware available in specified sets.The merchandise is described as ceramic tableware articles in specific patterns offered as sets for sale. Some of the tableware articles in these sets exceed the maximum dimensions set forth in Additional U.S. Note 6 to Chapter 69 for such articles.

CBP is proposing to issue HQ W968400, HQ H004625, HQ H004642, HQ H004643 and HQ H010776, in order to revoke HQ 967989, HQ 967920, HQ 967792, HQ 955838 and NY K87695, respectively. The original rulings held that the subject tableware was not classifiable under provisions for goods "available in specified sets" because the dimensions of certain articles exceeded the dimensions listed in Additional U.S. Note 6 (b) to Chapter 69. CBP now proposes these changes in order to reflect its new analysis.

Additional U.S. Notes to Chapter 69, Note 6 (b) defines the pieces that are required to qualify as "available in specified sets," for example: 12 plates of the size nearest to 26.7 cm in maximum dimension, 12 soups of the size nearest to 17.8 cm in maximum dimension, etc. The issue at hand is based on the interpretation of the terms "of the size nearest to" and "maximum dimension."

In the past, prior to conversion from the TSUS to the HTSUS, there was an additional note to the TSUS which explained these terms. Appendix C to the Seventh Supplemental Report of the U.S. Tariff Commission titled "Additional Explanatory Notes and Background Materials" explained the meaning of the term "maximum dimension" as it appeared in the TSUS. It stated in relevant part:

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

Despite the minor changes in the provisions converted from the TSUS to the HTSUS, CBP determined in the original rulings that while the Seventh Supplemental Report "did indicate that the dimensions for table and kitchen pottery claimed to be 'available in specified sets' could be larger or smaller than the dimensional requirements set forth for such articles in the TSUS, no similar note was adopted for the HTSUS" and therefore concluded that this evidenced Congress' intent that no such tolerances should apply to Additional U.S. Note 6 to Chapter 69, HTSUS.

CBP now proposes the position that because there are no major changes to the tariff provisions for articles ''available in specified sets'' from the TSUS to the HTSUS, and no dissimilar interpretation is required by the text of the HTSUS, there is no clear evidence which would require a different interpretation than that given under the TSUS. CBP further states that unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Absent clear evidence of legislative intent to embrace an alternative statutory definition, and in light of its historical pedigree, the TSUS definition of the term ''maximum dimension'' survives as the common and commercial meaning of the term under the HTSUS. (CBP cites several court cases as support for this view, see bulletin notice for details.)

Accordingly, CBP proposes that the term "maximum dimension" refers to the maximum straight-line distance across the face or top of the article whose dimension is specified. It does not place a limit on the size of the item. An article specified in U.S. Note 6(b) to Chapter 69 may exceed the noted dimension so long as it is a reasonable variation. Accordingly, an article described in U.S. Note 6(a) may be classified as being "available in specified sets" in heading 6911 or 6912, even if it, or another article listed in U.S. Note 6 (b), exceeds the dimensional descriptions of Additional U.S. Note 6, so long as the dimensional variation is reasonable and provided sufficient evidence is submitted that all 77 pieces of the set are being sold or offered for sale.

May 30, 2007 CBP Bulletin (Vol. 41, No.23) available athttp://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/