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HQ 950833

January 17, 1992

CLA-2 CO:R:C:M 950833 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.48

Ms. Jean F. McGuire
Area Director, New Yort Seaport
6 World Trade Center
New York, NY 10048-0945

RE: Internal Advice 58/91; "Siestaware" Stoneware Dinner Set; HQ 081217

Dear Ms. McGuire:

This is in response to your letter of August 1, 1991, requesting internal advice concerning the tariff classification of a sixteen piece "Siestaware" stoneware dinner set under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise consists of a "Siestaware" stoneware dinner set. It is comprised of sixteen pieces, including four ten inch plates, four seven inch plates, four six inch bowls, and four mugs.

ISSUE:

What is the proper classification of the stoneware dinner set under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

GRI 6 provides that:

[f]or legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandi, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

All parties agree that the dinnerware is not "available in specified sets". Classification of the merchandise is provided for as follows:

1. Ten inch plates - Subheading 6912.00.45, HTSUS, which provides for: "[p]lates over 22.9 but not over 27.9 cm in maximum diameter and valued over $8.50 per dozen."

2. Seven inch plates - Subheading 6912.00.48, HTSUS, which provides for: "[t]ableware and kitchen ware: [o]ther: [o]ther: [o]ther: [o]ther."

3. Six inch bowls - Subheading 6912.00.45, HTSUS, which provides for: "[s]oups, oatmeals and cereals valued over $6 per dozen."

4. Mugs - Subheading 6912.00.44, HTSUS, which provides for: "[m]ugs and other steins."

Classification will be determined by resort to GRI 3 inasmuch as the merchandise is not classifiable according to the terms of any particular heading.

GRI 3(b) provides that:

[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Counsel for the internal advice applicant argues that the essential character of the set is imparted by the ten inch plate. He claims that the "[ten] inch plate is clearly the most bulky component of the set, and is noticeably larger than the other pieces. The [ten] inch plate is also the heaviest article in the set, which is also being a function of its larger size. In addition, the [ten] inch plate is functionally more important than any other piece in the set, because it is an entre (sic) dish which occupies the central position in relation to the rest of the place setting. Finally, the [ten] inch plate is by far the most costly article in the set . . ."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 3(b)(VIII) (p. 4) provides that:

[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Counsel cites HQ 083362, dated July 21, 1989, and HQ 081217, dated May 17, 1989, in support of his position. In HQ 083362, it was ruled that the essential character of a moulded plastic picnic cooler, with special compartments and small containers to preserve and carry food, was imparted by the cooler. The reasoning was that the cooler is the bulk of the article and plays the main role of holding the other components of the set and insulating any food stored in the container.

In HQ 081217, it was determined that the essential character of certain luggage sets was imparted by their larger outer pieces. The reasoning was that the outer piece creates the initial selling impact, is of primary importance in selling the set at retail, and by virtue of its size, plays a dominant role in relation to the use of the pieces comprising the set.

We find that the subject stoneware dinner set is distinguishable from the luggage sets in HQ 081217, because the pattern of the stoneware, not the size and bulk of the ten inch dinner plate, creates the initial selling impact. We also find that the stoneware is distinguishable from the cooler in HQ 083362, because the ten inch plate is not the bulk of the dinner set when grouped with the seven inch plate, the six inch bowl, and the mug. Also, there is an assumption that all the articles in the set will be used at the same time. That is not our understanding of the use of this type of dinnerware. A purchaser of the set may use any one or a combination of the articles contained within the set at one time.

Based upon our finding that all the articles in the dinner set are functionally equivalent, it is our position that the set does not have an individual component which imparts an essential character. GRI 3(c) provides that:

[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Since all of the articles, taken separately, are classifiable in heading 6912, HTSUS, the seven inch plate is classifiable under the subheading which occurs last in numerical order among the articles contained within the dinner set. It is classifiable under subheading 6912.00.48, HTSUS, which provides for: "[t]ableware and kitchenware: [o]ther: [o]ther: [o]ther:

HOLDING:

The "Siestaware" stoneware dinner set is classifiable under subheading 6912.00.48, HTSUS. The general, column one rate of duty is 11.5 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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