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HQ 955838




August 8, 1994

CLA-2 CO:R:C:M: 955838 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.48

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

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