CLA-2 RR:CR:GC 964653 AM
Port Director
U.S. Customs Service
198 West Service Road Champlain, NY 12919
RE: Protest 0712-00-100118; ceramic dinnerware; "Woodhill" pattern
Dear Port Director:
This is in reference to Protest 0712-00-100118, timely filed by a customhouse broker on behalf of WSP Marketing International Ltd. ("WSP"), against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain ceramic dinnerware in the "Woodhill" pattern.
FACTS:
The merchandise consists of twelve entries of certain items of a ceramic dinnerware set identified as the "Woodhill" pattern. The manufacturer produces a 12" platter, valued at $2.04, and a 16" oval platter, valued at $8.12.
Protestant has submitted a letter from the manufacturer which states that the differences in the cost of the platters is due to inefficiency of kiln usage, high defect rate, lower yield and production runs. Furthermore, protestant has submitted evidence that the platters are available, imported and sold in the U.S. at unit prices returning a reasonable profit.
The entries were liquidated on March 24, 2000, under subheading 6912.00.35, HTSUS, as ceramic tableware 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 not over $38.00. In a protest timely filed on June 22, 2000, the protestant contends that the dinnerware is properly classified under subheading 6912.00.39, HTSUS, as ceramic tableware 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 $38.00.
ISSUE:
Is the aggregate value of the articles listed in additional U.S. note 6(b) of chapter 69, HTSUS, in the "Woodhill" pattern ceramic dinnerware above or below $38.00?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS subheadings under consideration are as follows:
6912.00 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:...
Tableware and kitchenware...
Other:
Other:
6912.00.35 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 not over $38.00
6912.00.39 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 $38.00
Additional U.S. Note 6(b), Chapter 69, HTSUS, states, in pertinent part, that for purposes of headings 6911 and 6912:
[I]f 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 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 cum in maximum dimension, sold or offered for sale, shall be substituted therefor.
Customs and the protestant agree that the "Woodhill" pattern dinnerware is principally for household use and is "available in specified sets."
The protestant contends that the aggregate value of the "Woodhill" pattern dinnerware items listed in Additional U.S. Note 6(b), Chapter 69, HTSUS, sold or offered for sale, is over $38. As evidence of this claim, the protestant has submitted a price list from the manufacturer stating that the pieces of the "Woodhill" pattern dinnerware germane to this determination are offered for sale in the U.S. as follows:
Dinner Plate
$ 7.30 per dozen
Salad Plate
$ 4.09 per dozen
Cup
$ 4.20 per dozen
Saucer
$ 2.30 per dozen
Dinner Soup
$ 4.40 per dozen
Soup/cereal
$ 4.09 per dozen
16” platter
$ 8.12 per piece
Oval serving bowl
$ 2.33 per piece
Sugar
$ 1.32 per piece
Creamer
$ 1.08 per piece
$39.32 Total
Additionally, the protestant has submitted evidence that the platter was offered for sale in the U.S. We note, that a 16" oval platter tends to be from 2 to 4 times the value of a 12" oval platter made by the same factory, of the same ceramic material, in the same process and in the same pattern.
Hence, the aggregate value of the items of the "Woodhill" pattern ceramic dinnerware listed in Additional U.S. Note 6(b), Chapter 69, HTSUS, sold or offered for sale, is greater than $38.00. The merchandise is therefore classifiable under subheading 6912.00.39, HTSUS.
HOLDING:
The ceramic dinnerware is classified under subheading 6912.00.39, HTSUS, as ceramic tableware 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 $38.00. This protest should be ALLOWED.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the 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 methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division