CLA-2 CO:R:C:M: 955838 MMC
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048
RE: Protest 1001-93-105468; Ceramic tableware; Additional U.S.
Note 6 (a) and (b) Chapter 69.
Dear Area Director:
The following is our response to the request for further
review of Protest 1001-93-105468 concerning your action in
classifying and assessing duty on various pieces of ceramic
tableware under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The articles in question are ceramic rice platters, salad
bowls, and 5 piece pasta sets. All three articles were imported
in the "Caffe Italia" pattern. A sample of a 20.3 cm plate was
provided. Additionally, some of the salad bowls were imported in
a "Morning Mist" pattern and some rice platters were imported in
a "San Remo" pattern.
Protestant has provided a manufactacurer's price list
proporting to indicate that each pattern is available in a 77
piece set valued over $38. The price lists indicate that all
three patterns contain the following:
12 26.42 cm dinner plates
12 21.34 cm soup plates
12 20.32 cm fruit plates
12 12.7 cm bread plates
12 teacups with saucers
1 39.88 cm x 61.31 cm oval plate
1 21.59 cm salad bowl
1 sugar with cover
1 creamer
The merchandise was entered under subheading 6912.00.39,
HTSUS, as other ceramic tableware "available in specified sets".
However, the entry was liquidated on July 23, 1993, under
subheading 6912.00.48, HTSUS, as other ceramic household
tableware not specified in sets. The protest was timely filed on
August 10, 1993.
The subheadings under consideration are as follows:
6912.00.39 Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of
porcelain or china: Tableware or kitchenware:
Other: Available in specified sets: In any pattern
for which the aggregate value of the articles
listed in additional U.S. Note 6(b) of this
chapter is over $38...
6912.00.48 Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of
porcelain or china: Tableware or kitchenware:
Other: Other: Other: Other...
ISSUE:
Whether the dinnerware meets the "available in specified
sets" requirements of U.S. Note 6(b) to chapter 69, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1, HTSUS, states in part that for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes.
U.S. Additional note 6 (a) and (b), to Chapter 69, HTSUS,
state:
6. For 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, 6911.10.39, 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 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.
Protestant claims that the 20.3 cm plate has been substitued
for the required "12 fruits of the size nearest 12.7 cm in
maximum dimension, sold or offered for sale" to create a pattern
available in specified sets. According to protestant, this
substitution may be effected by the "cereal" portion of the note
which indicates that if either fruits or soups are not sold,
cereals of the size nearest to 15.3 cm in maximum dimension may
replace them. We disagree.
Customs is of the opinion that the subject articles do not
meet the necessary size requirements to be considered "available
in specified sets". As the measurements in the note above
indicate, a "cereal" can not exceed 15.3 cm. Protestant's plate
is 20.3 cm. It is too large to be substituted for a fruit plate
or a cereal bowl. Therefore, the dinnerware is not considered
"available for sale in specified sets". The protested pieces are
classifiable in subheading 6912.00.48, HTSUS, as other ceramic
tableware and kitchenware.
HOLDING:
The subject dinnerware is not "available in specified sets"
and therefore the protested pieces are classifiable under
subheading 6912.00.48, HTSUS, which provides for other ceramic
tableware and kitchenware.
The protest should be denied. In accordance with Section 3A
(11)(b) of Customs Directive 0993550-065, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office 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, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and the public via
the Diskette Subscription Service, Lexis, Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division