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HQ 964652




April 11, 2002

CLA-2 RR:CR:GC 964652 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.35

Port Director
U.S. Customs Service
198 West Service Road
Champlain, NY 12919

RE: Protest 0712-00-100125; ceramic dinnerware; Betty Crocker™ Country Inn Collection pattern

Dear Port Director:

This is in reference to Protest 0712-00-100125, 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 Betty Crocker™ "Country Inn Collection" pattern.

FACTS:

The merchandise consists of certain items of a ceramic dinnerware set identified as the Betty Crocker™ "Country Inn Collection" pattern. The manufacturer produces a 12" platter, valued at $2.04, and a 16" oval platter, valued at $8.12. Both platters were submitted as samples. Laboratory Report 3-1998-10188-002, dated May 7, 1998, states, the following:

The samples consist of one large glazed ceramic oval server with Betty Crocker™ trademark on the bottom and measuring approximately 32 by 22 by 6.5 centimeters and a large glazed oval platter measuring approximately 28.5 by 38 by 4 centimeters. The platter does not have a Betty Crocker™ trademark but is otherwise decorated in the same edge pattern as the server. The server is composed of earthenware. It has an off-white colored body and a water absorption value of over three percent by weight. The platter is composed of stoneware. It has a water absorption value of 0.30% by weight, an off-white colored body and is naturally opaque. Both items are ceramic articles meeting the requirements of Additional U.S. Note 1 of Chapter 69, HTSUS and contain clay as an essential ingredient.

In an affidavit from WSP, the exporter of the merchandise, explains the differences in the platters noted in the lab report as due to kiln usage and poor quality control. Furthermore, sales promotional materials for the Betty Crocker™ Country Inn Collection submitted by the protestant do not include the 16" platter.

The entry was liquidated on April 14, 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 July 13, 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 Betty Crocker™ "Country Inn Collection" 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 Betty Crocker™ "Country Inn Collection" pattern dinnerware is principally for household use and is "available in specified sets."

However, the protestant contends that the aggregate value of the Betty Crocker™ "Country Inn Collection" 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 Betty Crocker™ "Country Inn Collection" pattern 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 an affidavit citing kiln usage and poor quality control for the differences in the ceramic of the 16" platter. We note, however, that the 16" platter, unlike all of the other items in the set, does not contain the Betty Crocker™ red spoon trademark. Furthermore, the 16" oval platter is not listed or shown in any promotional material for the Betty Crocker™ "Country Inn Collection." No evidence has been submitted to show that the 16" oval platter is actually offered for sale or sold in the U.S. with the Betty Crocker™ "Country Inn Collection."

However, the Betty Crocker™ "Country Inn Collection" includes a 12" oval platter valued at $2.04 that was offered for sale or sold in the U.S. Hence, the aggregate value of the items of the Betty Crocker™ "Country Inn Collection" listed in Additional U.S. Note 6(b), Chapter 69, HTSUS, sold or offered for sale, is $33.24. Thus, the aggregate value is less than $38.00. The merchandise is therefore classifiable under subheading 6912.00.35, HTSUS.

HOLDING:

The ceramic dinnerware is classified 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. This protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, 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

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