CLA-2 CO:R:C:M 951931 EJD
TARIFF NO: 6912.00.39
District Director of Customs
127 North Water Street
Ogensburg, New York 13669
RE: Protest No. 0712-92-100362; "Fresh Flowers" Dinnerware
Pattern; Stoneware; Subheading 6912.00.48; Additional U.S.
Note 6 (a) & (b) to Chapter 69; NY 832672; NY 840503; NY
840504
Dear Sir:
This is in response to the Application for Further Review of
Protest No. 0712-92-100362, dated March 18, 1992, which pertains
to the tariff classification of "Fresh Flowers" dinnerware
(stoneware) under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The merchandise in question is ceramic dinnerware in the
"Fresh Flowers" stoneware pattern imported by Mibon Marketing,
Inc. from Japan.
This entry was liquidated under subheading 6912.00.48,
HTSUS, which provides for "[c]eramic tableware, kitchenware,
other household articles and toilet articles, other than of
porcelain or china...[t]ableware and kitchenware...[o]ther...
[o]ther...[o]ther...[o]ther."
The protestant contends that the correct classification of
the "Fresh Flowers" stoneware dinnerware is subheading
6912.00.39, HTSUS, which provides for
Ceramic tableware, kitchenware, other household articles and
toilet articles, other than of porcelain or china...[t]able-
ware and kitchenware...[o]ther...[o]ther...[a]vailable in
specified sets...[i]n any pattern for which the aggregate
value of the articles listed in additional U.S. note 6(b) of
this chapter is over $38.
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The protestant maintains that the subject dinnerware is
tableware "available in specified sets". To support this claim,
the protestant submitted an affidavit from the manufacturer
listing the pieces made in the pattern and the corresponding
values.
The protestant claims that the liquidation of this entry is
inconsistent with New York Ruling Letter (NY) 832672, dated
October 26, 1988, which classified porcelain dinnerware, "Fresh
Flowers" pattern under subheading 6911.10.39, HTSUS, which
provides for porcelain dinnerware available in specified sets.
ISSUE:
Whether the subject merchandise is "available in specified
sets" as provided for under subheading 6912.00.39, HTSUS, or is
not "available in specified sets" and is classifiable under
subheading 6912.00.48, HTSUS.
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRIs), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
Additional U.S. Note 6 to Chapter 69, HTSUS, states, in
pertinent part:
(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 subheading 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,
...whether or not such articles are imported in the
same shipment:
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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...
12 tea cups and their saucers...
12 soups of the size nearest to 17.8 cm in maximum
dimension...
12 fruits of the size nearest to 12.7 cm in
maximum dimension...
1 platter or chop dish of the size nearest to 38.1
cm in maximum dimension...
1 open vegetable dish or bowl of the size nearest
to 25.4 cm in maximum dimension...
1 sugar of largest capacity...
1 creamer of largest capacity...
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.
Customs at the port of Champlain points out that NY 832672
applies to porcelain, not to stoneware, and unless the "Fresh
Flowers" stoneware pattern is found to be "available in specified
sets" subheading 6912.00.48, HTSUS, must apply.
According to the affidavit from the K.K. Yamakyu Seitosho,
the manufacturer of the pattern, "Fresh Flowers" stoneware
dinnerware is principally for household use and is "available in
specified sets" with an aggregate value of $73.52. We are
satisfied that this affidavit accurately describes the imported
merchandise. Therefore, the "Fresh Flowers" stoneware dinnerware
is properly classified under subheading 6912.00.39, HTSUS.
It is noted that in New York Ruling Letter (NY) 840503,
dated May 22, 1989, concerning the classification of stoneware
dinnerware, Customs determined that a different pattern of
stoneware dinnerware was "available in specified sets" in
accordance with Chapter 69, additional U.S. Note 6(b) of the
HTSUS, with an aggregate value of $53.85. See also NY 840504,
dated May 22, 1989.
HOLDING:
The ceramic dinnerware at issue is classified under
subheading 6912.00.39, HTSUS, which provides for ceramic
tableware, other than porcelain or china, available in specified
sets with an aggregate value of the articles listed in U.S. Note
6(b) of over $38.00. The rate of duty is 4.5 percent ad valorem.
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The protest should be granted in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division